This transcript has been auto generated
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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 other 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
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Tom Godar
Insider. It is great to get together for one more Labor Law Insider. The first of the spring of 2024. And what a topsy turvy time we've had since we began this podcast now what, almost three years ago, hey Terry.
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Terry Potter
It's pretty close.
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Tom Godar
We had thought that when President Biden was elected and the National Labor Relations Board majority and the general counsel for the National Labor Relations Board would change that. It would herald a lot of changes. And now we were you being critical of that. But we certainly understood that our clients and our friends would see a lot of change.
00;01;26;03 - 00;01;59;19
Tom Godar
And we've talked about that stuff since that time and it continues right now. We do something different today, and I think you have the perfect folks to help me do that. And let's take a look at some of the practical implications, the kind of calls that I get that my colleagues Terry Potter and Mary-Ann Czak will introduce in a moment, get that our 30 or so colleagues are getting every day regarding issues related to time off, related to coming in and understanding how to conduct an investigation, discipline, all those things.
00;01;59;25 - 00;02;19;25
Tom Godar
Those are real world questions, are having new answers than they had just two or three years ago. And we want to talk through some of those real world questions and answers that are changing because of the way in which the National Labor Relations Board has changed. So welcome aboard and welcome aboard to her rookie run as a labor law insider,
00;02;19;25 - 00;02;22;19
Tom Godar
Mary-Ann Czak. Mary-Ann, how are you?
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Mary-Ann Czak
I'm good. How are you?
00;02;24;09 - 00;02;40;05
Tom Godar
Great. Mary-Ann was practicing out of our Washington office and as an East Coast product, she went to Stony Brook, New York, and graduated from Hofstra Law. But that's not where you started your life, is it? Maria, tell us a little bit about your background.
00;02;40;20 - 00;03;03;09
Mary-Ann Czak
Yeah. So I lived in Long Island, New York, most of my life, but took about a five year detour in my early years from infancy to about five years old. I grew up in Saint Thomas, the U.S. Virgin Islands. So limited memories. But I'm sure my parents had a great time in the Caribbean for a period of time.
00;03;03;22 - 00;03;23;22
Tom Godar
I don't know how it got you back north, but it's great to have. Yes, good to have you on board with her. It's really fun to get to know you and to see how your practice with so many of our clients that we have a very seasoned member of our labor law insider cast that's Terry Potter tours out of our Saint Louis office and has every kind of accolade you could imagine from best lawyers.
00;03;23;22 - 00;03;31;06
Tom Godar
And on an on goes the list. Let's give us one sort of insight into the very special way in which you see the labor law world.
00;03;31;21 - 00;04;02;11
Terry Potter
Well, there's no question the biggest change that's occurred since the Biden administration. In my 40 plus years of practice, I've never seen such a dramatic shift in favor of unions. I won't say in favor of employees, I and say in favor of the unions, because that's that's the ultimate endpoint is not helping out employees necessarily. But the law is definitely helping out unions and goodness.
00;04;02;11 - 00;04;25;10
Tom Godar
We've talked about that on the insider terms of the number of elections, the number of successful elections. We just had an election in the south at an auto plant where the union won the first time in history, so on and on is that union friendliness. But I wanted to take it slightly differently today, which is our non union clients as well as our union clients in just day to day stuff are making phone calls to me.
00;04;25;10 - 00;04;51;18
Tom Godar
So any time now what? And I shake my head a little bit, think about first they have read our alerts, but secondly, until it really comes home, some of these changes aren't necessarily the kinds of things you live and die with, especially since so many of our clients have h.r. Directors and officers and managers who are, let's be honest, overburdened, have a lot going on and their job isn't as they seem to go.
00;04;51;19 - 00;05;11;09
Tom Godar
It's been an hour a day of refreshing as to what's new, but putting out the fire that presented itself that day, hiring the employee that they needed so their job or of course looking at the remote location that they just brought on or that they're bringing down. But all of that has the implications of changes because of the broad changes that Terry was just mentioning.
00;05;11;28 - 00;05;34;27
Tom Godar
So I got a call the other day, a client, a long time client says, Hey, Tom, we need some help with discipline, maybe up to termination. This employee also frustrated, first of all, the person was put on suspension after our investigation and talk. You may not talk to anybody outside of me. That is the H.R. person regarding this investigation.
00;05;35;07 - 00;05;51;13
Tom Godar
And immediately we got a report that they sent a text to one of our funding agencies, and we're on the phone with another employee term. Can we just let that person go? Isn't that all by itself enough? Basically, I'd call it insubordination, folks. What you think?
00;05;51;23 - 00;06;26;05
Terry Potter
Yeah. I mean, this is so typical, Tom, of things that people who aren't familiar with the NLRB run into and if they're not careful, can result in some more negation that they're not prepared to litigate. Unfortunately, in this scenario you describe, it's very likely the board would protect this person in terms of having the conversation with the funding source and say that person was engaged in what she referred to as concerted protected activity and therefore any discipline fostered against that employee would be unlawful.
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Mary-Ann Czak
Agreed with Terry's point. This is a frequent issue and I think especially when it comes to, you know, h.r with our clients and the National Labor Relations Act, you know, a lot of the time I hear, oh, well, our employees are not a union. You are not in unions. I don't have to worry about that. And that's, you know, a misconception.
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Mary-Ann Czak
So first, just the understanding that the act applies to all employees, not just those in a union part. And second, you know, obviously, our clients have an interest when it comes to investigations and trying to keep these things confidential to the extent there's always concern about, you know, intimidation or retaliation in the in the workplace. But to Terry's point, you know, under current board law, there is a concern when there is a blanket request to keep things confidential.
00;07;15;27 - 00;07;41;24
Mary-Ann Czak
You know, certainly if we try to narrow that request and say, look, during the ongoing nature of the investigation action, we could try to limit that confidentiality requirement. But just a broad statement that you cannot speak about this. Yes. You know, the board will likely find that unlawful and even, you know, a narrowly tailored instruction to keep an investigation confidential during the pendency.
00;07;41;24 - 00;07;55;28
Mary-Ann Czak
The current GC, like Terry mentioned, how, you know, this board is union friendly. The current GC has that type of confidentiality rule in her crosshairs, so it's something to be aware of that could even change down the road.
00;07;55;28 - 00;08;10;12
Tom Godar
But my client says, But we had a written right in our policies. They know that this is our policy. You must keep information in the context of an investigation confidential as well as all other information confidential. Is that going to get you out of the woods?
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Terry Potter
No, unfortunately it's not. In fact, the policy itself would probably be found unlawful, too. The fact that you're even issuing that because, again, as noted earlier, it would be overly broad. The NLRB doesn't have a problem if you limit the scope of any limitation regarding conversations in the workplace to a particular time frame or a particular group of employees or something like that.
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Terry Potter
But an overly broad keep your mouth shut rule. This isn't going to cut it. And, you know, our bee's going to jump over.
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Tom Godar
It, remarry.
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Mary-Ann Czak
Agree on 2%.
00;08;51;18 - 00;09;19;18
Tom Godar
Well not a problem because remember they brought this person in for discipline before they violated what we know. Right. Discover is an illegal policy in their handbook. So let's take a look at the handbook structurally and change those policies. But because they brought that person in and in this case, the concern for the person was seen in the lunchroom recording a conversation that she was having with her supervisor.
00;09;19;18 - 00;09;37;27
Tom Godar
Now, the supervisor wasn't aware of it and another person ratted her out. And that's really why she was being disciplined, because she was recording this conversation. The supervisor surreptitiously in the lunchroom. And again, our policy said, you can't have audio or visual recordings of the workplace. Are we okay? Can we still move forward on our discipline?
00;09;38;10 - 00;09;40;13
Terry Potter
Go ahead, Marianne. Enjoying the good news.
00;09;42;11 - 00;10;10;12
Mary-Ann Czak
Recordings in the workplace I think are tricky. And when it comes to workplace rules in these types of situations, obviously everything's specific. But to Terry's point earlier, you know, when you're looking at workplace policies and rules, the broader they are, the greater the chance they could be determined to run afoul of the act. So we have a broad policy that just outright says, you know, no recording in the workplace without any exceptions or any narrowing language.
00;10;10;25 - 00;10;38;27
Mary-Ann Czak
Yeah, that's that's likely to be found unlawful because to the extent, you know, an employee is recording in furtherance of their protected concerted activity. So if they think, you know, the discipline being imposed on them is unfair or if they're recording because they want to discuss wages and terms and conditions of employment with their manager and then, you know, incite group activity in doing so, that's likely protected.
00;10;38;27 - 00;11;04;07
Mary-Ann Czak
So when we discipline or say, look, you violated our policy, that's going to be be found unlawful compared to recording policies that, you know, are more narrowly tailored where they're prohibiting recording about, you know, sensitive client or patient information, for example, that would be found likely to be okay. But just a general prohibition, that's definitely problematic.
00;11;04;19 - 00;11;38;26
Tom Godar
So if I share with you that in this scenario that I'm thinking of, although it has all sorts of neurological application ins over the past couple of months, if this was a a setting where there were third parties who were receiving care in the setting. And so the policy says there's no recordings allowed here because they may inhibit communications with our clients or our residents or patients or supplement what are the words you like there and or might be a violation of our clients, our residents or patients privacy rights.
00;11;39;11 - 00;11;48;10
Tom Godar
Does that make the the discipline based on a conversation just between the supervisor and employee? Okay. Because the policy itself is okay.
00;11;49;01 - 00;12;34;10
Terry Potter
Well, I think the big issue you always have in health care setting is the concern regarding HIPA. And that is a difficult burden even before the NLRB to establish that violations are sufficient to provide discipline for potential for disclosing protected information under HEPA. There is an extensive GCM memo on this whole topic, but from my standpoint, pretty much talks in circles regarding whether or not this sort of scenario should result in a finding of a violation here that isn't going to totally protect you.
00;12;34;10 - 00;13;03;23
Terry Potter
It's a factor to be looked at, but you've got to look at all the facts and circumstances in the situation. And and that's the problem, especially in highly regulated industries like health care, you know, multiple regulatory bodies controlling the workplace. And here you got potentially, you know, HIPA regulation coming in conflict with the National Labor Relations Act. And, you know, how do you resolve those differences?
00;13;04;02 - 00;13;04;23
Terry Potter
It's difficult.
00;13;05;05 - 00;13;31;29
Tom Godar
And Terry or Maria, what happens if it's not HIPA? That is that's patient. And so there's a specific definition of what a patient is. There's a specific definition of health care information. But let's say that you're taking care of the developmentally disabled, but you're not doing it in a clinical setting. This is just a residential setting. Can you potentially expand that still narrow definition or each time you expand?
00;13;31;29 - 00;13;49;07
Tom Godar
Or do you just sort of take out another degree of potential risk by saying, well, you shouldn't be recording that kind of thing, because it's a potentially a chilling of the employee's exercise of their rights under seriously privilege, under yeah.
00;13;49;08 - 00;14;11;28
Mary-Ann Czak
I think it's analogous to to a patient's situation and even the argument can be made, even if you're outside a clinical care setting or developmentally disabled setting, you know, even when it comes to confidential customer or vendor information or corporate trade secrets, all of that can be you know, rules can be tailor made to prevent the disclosure of that type of information.
00;14;11;28 - 00;14;50;09
Mary-Ann Czak
I think it comes down to can the employer, can the client articulate a legitimate business reason for the narrowing and maintenance of that type of workplace rule? Now, the rule itself may be lawful, but the application of it, you know, could potentially be unlawful. For example, if the recorded conversation was not occurring in a place where, you know, patient or client care was happening, I think that could be a distinction the board will look at and they may say, well, you know, the law, the rule itself may be defensible, but how the employer applied it, could it be violated by the law?
00;14;50;09 - 00;15;06;04
Mary-Ann Czak
Certainly. But I think, you know, when it comes to narrowly tailoring those rules and making them prohibiting recording, when it comes to sensitive information, I think clients are in a better position to defend themselves versus just like we already discussed, a broad workplace rule.
00;15;06;17 - 00;15;38;28
Terry Potter
Yeah, but the shame of it all is you have to be a labor attorney to understand all of this. And given the world away of our clients, it's kind of a full time labor attorney involved in every conversation in a workplace. So this doesn't happen. I mean, the nuances are just all over the place. It's not fair for employers to have to deal with this sort of micromanagement, the point where it's difficult for them to run their business and to protect their rights and their customers, or in this case, patients rights.
00;15;39;07 - 00;15;41;20
Terry Potter
And that's when I get upset about this situation.
00;15;42;24 - 00;16;05;12
Tom Godar
And there's complexity in every level. I appreciate your putting it in that sort of lovely context, Terry, that we're expecting an awful lot of folks who are trying to keep their day to day operations moving, even with the 100 or so labor and employment attorneys that we have. BLACKWELL Sitting out phone calls like this one for an hour trying to nuance our way through these changes.
00;16;05;12 - 00;16;31;05
Tom Godar
And either we have, you know, interpretations that we're not all squared up because it is so complex in that complexity. What happens if this scenario includes the fact that the client says, oh, by the way, this person is a group home manager and therefore they set the schedules for the rest of the staff that's there. They don't hire the staff because that's done by h.r.
00;16;31;05 - 00;16;48;06
Tom Godar
And by the regional director. But they do have the capacity to, you know, if somebody is absent or somebody is really looking to recommend discipline, is there a possibility that this person's going to be out of the long arm of the NLRB law?
00;16;48;18 - 00;17;19;13
Mary-Ann Czak
Yeah. I mean, I think that fact pattern is, you know, welcome news to a labor attorney because under the act, what's called 211 statutory supervisor, they're not protected by the National Labor Relations Act. So some of the factors you just mention, like scheduling, recommending discipline, using independent discretion to do so, that individual could very likely be determined to be a supervisor and then they fall outside the protections of the accident or the the activity that they engage in.
00;17;20;00 - 00;17;47;14
Mary-Ann Czak
We could take, you know, discipline and take action that wouldn't be violative of the law, because ultimately, when you're a statutory supervisor, you're acting on behalf of the employer, you're the employer's agent, and you're supposed to be acting in the employer's best interest. The test 4 to 11 supervisory status is very specific and fact intensive. So, you know, when we get posed with those facts by clients, we kind of dove in and take the inquiry step by step.
00;17;47;14 - 00;17;53;19
Mary-Ann Czak
But certainly I think you presented an arguable back pattern where we could make that determination, Mary.
00;17;53;19 - 00;18;21;01
Tom Godar
And that was terrific. And audience we're going to pause right there because the conversation continues with some really practical scenarios and some advice that Terry and Mary-Ann share. And it's wonderful stuff, but we want to be able to take a break and be back in a week or two as we continue this discussion. And I thank you so much for following along with me as we've got a little bit of, as you know, an audio glitch here with a different kind of microphone than we normally use.
00;18;21;03 - 00;18;48;13
Tom Godar
But thanks for hanging with us in another week or two, join us for part two of this very practical approach to what does it mean with all of the changes in labor law, both for our union clients and friends, but particularly for those of you who are working in the nonunion world. Thanks again for joining us at The Labor Law Insider, and we'll be talking to you in just a couple of weeks.