*By Patrick J. Hoban
On August 25, 2011, the National Labor Relations Board (“NLRB”) released its final rule - designated as 29 CFR 104 in the Federal Code of Regulations - requiring, for the first time ever, that employers post a notice of employee rights under the National Labor Relations Act (“NLRA”). The rule takes effect on November 14, 2011 and requires most private-sector employers to post a specific notice provided by the NLRB. The rule exempts public employers, employers subject to the Railway Labor Act (e.g., transportation industry employers), and very small employers (generally, those with an annual business volume of less than $50,000.00). Employers subject to the rule must post the required notice whether their workforce is unionized or not.
Employers must post the notice where other workplace notices are typically posted – in “conspicuous places in the workplace.” Additionally, employers who customarily communicate policies to employees electronically or via a website must also post the notice that way in addition to the physical posting in the workplace. Importantly, if 20% or more of an employer’s workforce is not “proficient in English,” the employer must post or otherwise provide a version of the notice in the language those employees speak. Beginning November 1, copies of the notice will be available from NLRB regional offices or employers may download them from the NLRB website (www.nlrb.gov) free of charge. The NLRB will also provide versions of the notice in languages other than English through its regional offices and online.
The notice identifies employee rights under the NLRA to act together to improve wages and working conditions; to form, join, and assist a union; to bargain collectively with their employer; and to refrain from any of these activities. However, the notice also tells employees how to file an unfair labor practice charge and/or contact the NLRB to initiate an investigation of a possible unfair labor practice. The rule does not impose reporting or recordkeeping requirements on employers.
The NLRB will treat any failure to post the required notice as an unfair labor practice. While, in most cases, a failure to post will result in a cease and desist order, the rule provides that it may also serve as proof of unlawful employer motive relevant to other unfair labor practice charges. The rule reserves to the NLRB the right to impose additional remedies for violations consistent with its statutory authority.
If you are a private-sector employer covered by the NLRA - whether your employees are unionized or not - you must obtain and post the required NLRB notice by November 14, 2011. If you have any questions about the rule or the NLRB, contact Pat Hoban.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of labor relations. For more information about the Final Rule or labor law, please contact Pat at 216.696.4441 or pjh@zrlaw.com.
Friday, August 26, 2011
Monday, August 15, 2011
Does At-Will Mean You Can Change An Employee’s Pay At Any Time?
By Stefanie L. Baker
An Ohio Court of Appeals recently recognized that employers are not always free to change their employees’ compensation, even when those employees are employees at will.
The case is Pate v. Quick Solutions, Inc., 2011-Ohio-3925. The employee in the Pate case was an employee at will who had, at one time, signed a written contract with his employer. That contract provided that a “Bonus Calculation Model” would determine certain salary increases and cash bonuses throughout his employment.
In 2004 the parties attempted to reach an agreement on a new bonus plan, but were never able to agree. The President of the company then chose to simply change Pate’s bonus to a purely discretionary bonus, reasoning that he could do so because Pate was an employee at will. However, the company presented no evidence that it actually informed Pate it was making this change: it simply implemented the change.
When the company eventually fired Pate, Pate filed a lawsuit, claiming (among other things) that he was owed unpaid bonuses under the “Bonus Calculation Model.” The trial court initially threw out Pate’s bonus claim, but the Court of Appeals reversed, agreeing with Pate that he might be owed bonus money. The Court of Appeals recognized that the company, as an employer of at-will employees, was free to change the compensation of its employees at its whim, and the employees would be deemed to have accepted this change if they continued to show up and work for the employer after the change was announced. But the Court of Appeals found that there was no evidence presented regarding whether or not the company had ever announced to Pate that it was changing the manner in which his bonus was calculated. If, in fact, the company never notified Pate of the change, Pate never had the opportunity to accept it (by continuing to work) or reject it (by quitting). If that were the case, there was never a valid change, and the “Bonus Calculation Model” would still apply. The Court of Appeals remanded the case back to the trial court to determine whether Pate received notice or otherwise knew of the alleged change to his cash bonus plan.
The Pate case illustrates that employers of at-will employees cannot simply implement changes to their employees’ compensation and benefits without actually informing employees of the change. Otherwise, courts might find the employer on the hook for benefits that the employer thought it replaced long-ago.
An Ohio Court of Appeals recently recognized that employers are not always free to change their employees’ compensation, even when those employees are employees at will.
The case is Pate v. Quick Solutions, Inc., 2011-Ohio-3925. The employee in the Pate case was an employee at will who had, at one time, signed a written contract with his employer. That contract provided that a “Bonus Calculation Model” would determine certain salary increases and cash bonuses throughout his employment.
In 2004 the parties attempted to reach an agreement on a new bonus plan, but were never able to agree. The President of the company then chose to simply change Pate’s bonus to a purely discretionary bonus, reasoning that he could do so because Pate was an employee at will. However, the company presented no evidence that it actually informed Pate it was making this change: it simply implemented the change.
When the company eventually fired Pate, Pate filed a lawsuit, claiming (among other things) that he was owed unpaid bonuses under the “Bonus Calculation Model.” The trial court initially threw out Pate’s bonus claim, but the Court of Appeals reversed, agreeing with Pate that he might be owed bonus money. The Court of Appeals recognized that the company, as an employer of at-will employees, was free to change the compensation of its employees at its whim, and the employees would be deemed to have accepted this change if they continued to show up and work for the employer after the change was announced. But the Court of Appeals found that there was no evidence presented regarding whether or not the company had ever announced to Pate that it was changing the manner in which his bonus was calculated. If, in fact, the company never notified Pate of the change, Pate never had the opportunity to accept it (by continuing to work) or reject it (by quitting). If that were the case, there was never a valid change, and the “Bonus Calculation Model” would still apply. The Court of Appeals remanded the case back to the trial court to determine whether Pate received notice or otherwise knew of the alleged change to his cash bonus plan.
The Pate case illustrates that employers of at-will employees cannot simply implement changes to their employees’ compensation and benefits without actually informing employees of the change. Otherwise, courts might find the employer on the hook for benefits that the employer thought it replaced long-ago.
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