executives may also better serve the
company’s interests, considering that
they tend to have more access to this
level of information and such a policy
would be less likely to be seen as
impinging on Section 7 rights, she says.
When deciding what to include in
handbooks, “less is more” may be the
best strategy, says Caulkins.
“Handbooks don’t need to include
every single process,” he says.
Policies on social media, for
example, needn’t go into detail on what
employees should not say about the
company within that medium. If an
employee posts something malicious
about the company and defends his
action by saying it wasn’t specifically
proscribed in the handbook, says
Caulkins, HR can simply say that it’s
common sense to know that writing
such a thing would be prohibited.
“Your policy should make a
distinction between false statements
and maliciously false statements with
intent to harm,” says Baffa.
Indeed, social media has created
a whole new level of visibility into
the types of gripes and complaints
employees have always had.
“There used to be water-cooler
conversations—now, thanks to social
media, everyone’s around the water
cooler,” says Baffa.
Companies can and should make it
clear to employees that they can’t use
social media to say negative things
about their company’s products,
services and customers—and they
should enforce that, he says. However,
as per Griffith’s memo, don’t tell them
they can’t criticize the company or
“Make sure your policy covers
customers and products and services,
but leave the rest up to good judgment,
and have a good internal system for
addressing complaints,” says Baffa.
With regard to social media,
Cooperman cites one client’s policy as
an example of what to do.
“Their policy basically says, ‘What
you post on social media is available
to many people, so please think before
you post,’ ” she says. It acknowledges
that the company can’t restrict what
employees do during their free time,
but urges them not to post items that
could detrimentally affect workplace
morale or the company’s business.
“They don’t try and restrict what
employees do; they merely offer
suggestions,” says Cooperman. “And
the policy was found to be lawful.”
Policies restricting or forbidding
the use of cellphones and cameras
in the workplace—typically put
into place by companies hoping to
avoid inappropriate employee videos
surfacing on You Tube and the like—
may be understandable, but employers
need to be careful there too, says Baffa.
“Putting broad restrictions on
employees in these areas is seen by the
board as potentially leaving employees
with the impression that they can’t use
those resources for concerted activity,”
His advice? Be specific.
“If you’re trying to prevent
employees from using their cameras
at work, write the policy in such a
way that makes it clear why you’re
not allowing it or what they’re not
permitted to take photos of,” says Baffa.
For example, he says, rather than
having a blanket prohibition on devices,
a restaurant should instead specify
that employees who use their camera
phones to cast doubt on the quality or
safety of its food will be punished.
Contact with the media is another
touchy area. Rather than forbidding
employees from contacting the media,
says Caulkins, the handbook should
instead require employees to alert the
company about any contacts they have
with the media.
“The general counsel has taken the
position that if you start restricting
contacts with the media, you’re
restricting their ability to discuss
working conditions with the outside
world,” he says.
Although the NLRB’s seemingly
ever-tighter reins on employers can be
exasperating, Baumgarten counsels
“These policies of the NLRB have
not been reviewed by a court,” he says.
“The last word has not been written.”
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Contending with ‘Quickie Elections’
Employment attorneys largely agree that the National Labor Relations Board’s so-called “quickie election rule,” which went into effect in April and greatly compresses the allowable timeframe for union elections, puts employers at a disadvantage versus unions.
“Statistics show very clearly and dramatically that the rate of union success in
elections varies adversely with the amount of time between the filing of a petition
and the election,” says Proskauer’s Joseph Baumgarten. “Very often, the employer
is behind in engaging in a lawful campaign to express ideas, opinions and
arguments against unionization.”
The new rule doesn’t serve employees well, either, says Fisher & Phillips’
“It is unfortunate that the NLRB is implementing a process that really works to
the disadvantage of employees to be fully informed of the issues,” he says. “The
[National Labor Relations Act] is supposed to be for the employees’ benefit.”
The NLRB says the new rule is necessary in order to streamline the election
process and eliminate unnecessary litigation and delay.
The rule highlights the need for employers to be proactive by constantly examining
and re-examining the terms and conditions of employment, says Baumgarten. This
can range from a periodic examination of policies to conducting environmental
reviews of the workplace and designing effective dispute-resolution processes.
“Give employees a voice in the workplace, because the alternative could be a
union campaign,” he says.
Training supervisors on how to properly respond to and address employee
complaints and concerns is also important, says Seyfarth Shaw’s David Baffa.
Doing so will not only bolster morale, but make it less likely unions will have an
issue to exploit.
“If a manager gives employees the stiff arm, it sends them outside to social
media and other places, where they’ll do their griping and complaining in a public
forum,” he says.
By the same token, HR should ensure that managers are properly trained
to ensure they don’t unintentionally run afoul of the NLRA. The training doesn’t
need to be in-depth, but should be enough so they understand what constitutes
protected concerted activity, says Caulkins.
“If the guys on the shop floor say, ‘We’re not working until you get some fans in
here,’ the supervisor should understand that threatening to fire them unless they
get right back to work is a violation of the law,” he says.
How We Choose
This is the eighth edition of the “Nation’s Most Powerful Employment Attorneys,” a joint project produced by Human Resource Executive® and Lawdragon, a media company
that has been issuing “best of” lawyer lists since 1989.
Our first 2007 guide honored the nation’s top 50
corporate employment attorneys. Today, we recognize
210 employment lawyers who stand out for their ability to
guide employers through constantly-evolving workplace
laws. Included in that total are 100 leading corporate-side lawyers; 20 specialists apiece in immigration, labor
law, and employee benefits and ERISA; 40 Up-and-Comers, who year after year graduate to all-stars; and 10
Hall of Famers. (Lists can also be found on HREOnline.
com’s Awards drop-down tab and on Lawdragon.com.)
One of the most special facets of this guide is the
Hall of Fame, now in its third year. It features legends of
the employment bar whose contributions to the field, as
well as their firms, are unparalleled. Very few lawyers are
35 years in the employment-law trenches and requires
consistent recognition for all-around excellence in
counseling clients, contributing to the bar and serving as
a visionary to improve workplaces. Up to 10 lawyers are
added to the Hall of Fame each year and retired from
future consideration for other lists; their achievements
are perpetually recognized on HREOnline™ at http://
bitly/1JZ1WAx and on Lawdragon’s website at
All six lists are intended to offer corporate counsel
and HR professionals an unsurpassed guide to the
best lawyers to help them resolve difficult employment
situations and keep them in compliance with increasingly
complicated and changing workplace-related regulations.
The process pairs online balloting and submissions
with rigorous vetting, as well as editorial and peer
review. In December, HRE’s 75,000-plus subscribers
and Lawdragon’s 500,000 database members were
invited to submit nominations for the guide. Nomination
forms were also posted on both websites. Three
months and thousands of submissions later, the vetting
began—first by Lawdragon’s research team and then
through each nominee’s clients and peers.
To make the cut on the general and specialty lists,
a lawyer typically has practiced more than 20 years
and amassed a list of remarkable accomplishments—
defending and advising companies in the day’s
most critical matters, advising them on hiring and
retaining the best employees from around the world,
and continuing to unravel the ever-evolving world
of employee benefits. A recognized attorney has
also generally chaired his or her firm’s employment
department and has been selected to lead his or her
state or national employment-bar organization. The
criteria for Up-and-Comers is similar, though ratcheted
back a bit to account for their 20 or fewer years in
practice. All have received glowing recommendations
from corporate counsel who have reaped the benefits
of their wisdom; in every case, their clients would hire
these lawyers when next they are tested.
The lawyers included on the HRE/Lawdragon lists are
also vetted for integrity. Bar records are checked, and
peers and counsel are questioned about their integrity
beyond a lawyer’s technical and tactical skill. It’s important
that those who make the cut admire—even if they don’t
always agree with—their colleagues on these lists.
Lastly, an editorial advisory board comprised of a
who’s who of the nation’s corporate employment bar
vets the finalists. They discuss their own experiences
with the attorneys under consideration and we follow
the trail to the clients, judges and opposing counsel
who can offer first-hand experiences with these lawyers.
Only those who earn glowing marks from clients, peers,
colleagues and judges are awarded the distinction of the
Nation’s Most Powerful Employment Attorneys.
Don’t Get Ensnared Cover Story