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SHRM Newsletter- There's a New Sheriff in Town- The NLRB
Posted on Dec. 7, 2012

This is Utah SHRM Legal-mail no. 2012-23 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM). 







THERE’S A NEW SHERIFF IN TOWN- THE NLRB: Over the last two years, many non-union employers have become painfully aware that when it comes to employment law issues, the National Labor Relations Board (NLRB) is the new sheriff in town. It started two years ago when the NLRB, now controlled by appointees of President Obama, told employers that employee Facebook communications may well be communications with co-workers protected by the National Labor Relations Act (NLRA). The NLRA protects the right of employees to act in concert (by communications or actions) to address or improve the terms and conditions of their employment. Soon thereafter, the NLRB announced that employer arbitration and class action waiver agreements imposed as a condition of employment violate the NLRA because they limit employee rights to act collectively. Recently, the NLRB ruled that a policy prohibiting defamatory statements about the company may violate the NLRA if they are written so broadly that they can be construed as prohibiting employee statements criticizing management.  Finally, the NLRB has ruled that employer contract disclaimers commonly found in employee handbook acknowledgment forms may violate the NLRA because they could chill employee discussions aimed at improving their working conditions and/or creating a union and thus changing at-will status through a collective bargaining agreement. The bottom line? Non-union employers used to dealing with Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC) and the Department of Labor (DOL) now must accept the reality that there is a new sheriff in town, the NLRB, which along with these other agencies also will be broadly imposing its own regulatory framework on such employers.

HOLIDAY BONUSES AND FLSA: It’s that time of year...chestnuts roasting, festive decorations and holiday or year-end bonuses. Of course, that means it is also that time of year for employers to remember that bonuses must be counted as part of the compensation on which nonexempt employees are paid overtime. This is required by the Fair Labor Standards Act (FLSA), unless the bonuses are completely discretionary both in terms of amount and whether they will be given at all. Thus, for example, a bonus based on productivity that is determined by the employee’s action in meeting set goals must be rolled into the employee’s total compensation on which overtime is paid. In contrast, a holiday bonus paid at management’s discretion alone with the amount also left to management discretion need not be included as part of employee compensation when determining overtime pay. Keep this in mind, lest your holiday “Ho-Ho-Ho” is drowned out by an unwanted visit from the “D-O-L.”  

SHRM PUBLISHES POST-ELECTION LEGISLATIVE OUTLOOK FOR HR: With the campaigning over, the TV political ads ended (thankfully) and the yard signs coming down, election 2012 is now history. What do the results mean for your company and you in HR? National SHRM has tried to answer those questions with the publication of a new pamphlet discussing the HR public policy outlook post-election. The new document is available to SHRM members at The pamphlet comprehensively addresses what are likely to be the legislative and regulatory agendas for the next two years and SHRM’s position on the same. This ranges from the fiscal cliff to immigration to health care reform to what’s going on in the states. This is a good tool to orient you to what might happen next in employment law and how you can be involved in the discussion.

SUPREME COURT CONSIDERS WHAT IT MEANS TO SUPERVISE: As many of you know, there are different standards for when an employer may be held liable in a lawsuit for the harassing conduct of a supervisor as opposed to that of a co-worker. Generally, an employer must know about a co-worker’s misbehavior and not fix it in order to be held liable. In contrast, an employer’s defense against supervisory harassment often hinges on whether the employer has promulgated an adequate procedure for complaints that has not been used by an aggrieved employee. Thus, the critical question in such cases is often whether or not the alleged harasser is a supervisor. The United States Supreme Court recently considered a case that will help explain who is, and who is not a supervisor. The critical question is whether overseeing someone’s daily work is enough to make one a supervisor, or whether the supervisor must have the power to hire, fire, demote, transfer or discipline. The Court likely will issue its decision next Spring.

SOCIAL MEDIA WEBINAR UPCOMING: What’s not to like about social media?  A lot! Social media issues have become increasingly prominent in all aspects of modern life. The workplace is no exception. Increased use of social media in the workplace has many positive commercial benefits.  Employees can network and collaborate in ways never done before. But social media also presents some dangerous and costly landmines for employers. For example, what happens when you learn too much about a job applicant online?  How can you prevent your employees from disclosing private or confidential information?  And what online behavior can be grounds for employee discipline?  A webinar presentation by my partner and Salt Lake SHRM Legal Director Mark Tolman will explore: 1) the dangers of learning too much about job applicants, 2) how to regulate employee use of social media—what you can and cannot prohibit, and 3) avoiding claims of online sock-puppetry. In addition, he will discuss the essential elements of a good social media policy. The webinar is set for 10 a.m. on Wednesday, December 12, 2012.  Check it out. For more details on how to attend, see:

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mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition


OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012