NLRB General Counsel Issues Memo on Unlawful Electronic Surveillance and Automated Management Practices

In a new memo, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo announced her intention to protect employees, to the greatest extent possible, from intrusive or abusive electronic monitoring and automated management practices through vigorously enforcing current law and by urging the Board to apply settled labor-law principles in a new framework. The memo describes various technologies that are increasingly being used to closely monitor and manage employees. For instance, some employers record workers’ conversations and track their movements using wearable devices, cameras, radio-frequency identification badges and GPS tracking devices. And some employers monitor employees’ computers with keyloggers and software that takes screenshots, webcam photos, or audio recordings throughout the day. Employers may use this data to manage employee productivity, including disciplining employees who fall short of quotas, penalizing employees for taking leave, and providing individualized directives throughout the workday. “It concerns me that employers could use these technologies to interfere with the exercise of Section 7 rights under the National Labor Relations Act by significantly impairing or negating employees’ ability to engage in protected activity—and to keep that activity confidential from their employer,” said General Counsel Abruzzo. “Thus, I plan to urge the Board, to the greatest extent possible, to apply the Act to protect employees from intrusive or abusive electronic monitoring and automated management practices that would have a tendency to interfere with Section 7 rights.” The General Counsel will urge the Board to adopt a new framework for protecting employees from employers’ abuse of technology by holding that an employer has presumptively violated the Act where an employer’s surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in activity protected by the Act. If the employer’s business need outweighs employees’ Section 7 rights, unless the employer demonstrates that special circumstances require covert use of the technologies, she will urge the Board to require the employer to disclose to employees the technologies it uses to monitor and manage them, its reasons for doing so, and how it is using the information it obtains. The memo also notes that the General Counsel is committed to an interagency approach to these issues, as numerous agencies across the federal government are working to prevent employers from violating federal law using electronic surveillance and algorithmic management technologies. The General Counsel has recently signed agreements with the Federal Trade Commission, the Department of Justice, and the Department of Labor which will facilitate information sharing and coordinated enforcement on these issues.

LACBA Daily eBriefs, October 25, 2022

The following caselaw summaries are provided as a courtesy to Los Angeles County Bar Association members by the Metropolitan News-Enterprise www.metnews.com. Image removed by sender.NINTH U.S. CIRCUIT COURT OF APPEALS Criminal Law and Procedure 18 U.S.C. §3663(a)(3) grants statutory authority to district courts to award restitution whenever a defendant agrees in a plea agreement to pay restitution. In re Doe v. U.S. - filed Oct. 25, 2022 Cite as 2022 S.O.S. 22-70098 Full text click here > Constitutional Law A district court did not abuse its discretion in reducing the attorney fees and costs payable to a serial Americans with Disabilities Act plaintiff given the routine nature of the work performed by the plaintiff’s attorneys, the lack of meaningful opposition by the defendants and the repetitive nature of high-frequency ADA litigation. Shayler v. 1310 PCH - filed Oct. 24, 2022 Cite as 2022 S.O.S. 21-56130 Full text click here > Torts The Communications Decency Act shielded a social media platform from liability for user-posted content. 47 U.S.C. §230(c)(1) immunity does not apply to child sex trafficking claims if the conduct underlying the claim also violates 18 U.S.C. § 1591; the availability of this immunity exception is contingent upon a plaintiff proving that a defendant-website’s own conduct—rather than its users’ conduct—resulted in a violation of §1591. Does v. Reddit - filed Oct. 24, 2022 Cite as 2022 S.O.S. 21-56293 Full text click here > Criminal Law and Procedure A district court did not clearly err in finding a defendant qualified as an organizer or leader of the criminal conspiracy under USSG §3B1.1(c) where he had the necessary influence and ability to coordinate the behavior of others so as to achieve a desired criminal result, and his recruitment efforts were indicative of his playing a leadership or central organizational role in a conspiracy. U.S. v. Kabir - filed Oct. 24, 2022 Cite as 2022 S.O.S. 21-50141 Full text click here > Image removed by sender.CALIFORNIA COURT OF APPEAL Contracts The standard for prevailing party status under Code of Civil Procedure §1032 does not govern the prevailing party analysis for purposes of attorney fees pursuant to Civil Code §8800. Vought Construction v. Stock - filed Oct. 24, 2022, Fourth District, Div. Four Cite as 2022 S.O.S. 5390 Full text click here > Employment An employer did not meet its burden to show that there was no triable issue of material fact regarding an employee’s claim for unpaid wages where the employer could and did track the exact time in minutes that an employee worked each shift and those records showed that the employee was not paid for all the time he worked because of the employer’s quarter-hour rounding policy.

NLRB General Counsel Issues Memo on New 10(j) Injunction Casehandling Instructions to Increase Voluntary Settlements and Streamline Processes

Today, NLRB General Counsel Jennifer Abruzzo issued a memorandum to all field offices announcing measures to improve the Agency’s effectiveness in securing relief under Section 10(j) of the National Labor Relations Act. The General Counsel lays out measures that the Agency will take to better focus resources: Regions will now seek to settle the Section 10(j) aspect of cases warranting interim relief when efforts to settle the administrative case are unsuccessful. Charged parties will be given the opportunity to voluntarily agree to an interim agreement that includes remedies, such as reinstating alleged discriminatees or agreeing to bargain, pending final resolution of the administrative case by the Board. If the parties do not reach a settlement on interim relief, if it would be futile to seek such a settlement, or if a party agrees to such a settlement but violates its terms, the Region may take all appropriate actions, including seeking authorization to petition for injunctive relief in federal district court. In those instances, the Regions and the Injunction Litigation Branch will utilize streamlined 10(j) authorization procedures to facilitate more efficient processing and a more effective process for obtaining relief as quickly as possible. “Section 10(j) is one of the most important tools available to effectively enforce the Act. It is my hope that this initiative will result in an increase in voluntary agreements to obtain crucial interim remedies, will reduce the need for district court litigation, and will conserve the resources of the Agency and all parties,” said General Counsel Jennifer Abruzzo. Today’s memo builds on previous memos that address the importance of injunctive relief. In February, the General Counsel announced an initiative to seek injunctions in certain cases where workers have been subject to threats or other coercive conduct during an organizing campaign. Last August, the General Counsel released a memorandum underscoring the importance of 10(j) injunction proceedings and affirming the Agency’s priority in continuing efforts to obtain immediate relief in cases that present a significant risk of remedial failure. For more information, visit us at http://beverlyhillsimmigrationlaw.blogspot.com/.

Board Updates Considerations for Directing Mail-Ballot Elections

Today, the Board issued a decision in Starbucks Corporation, updating the considerations that guide Regional Directors in exercising their discretion in determining whether an election should be conducted by mail ballot, as opposed to an in-person manual-ballot election, due to COVID-19-related conditions. The decision, based on an election held in a Starbucks coffee shop in Seattle, modified one of the six factors in the Board’s 2020 decision in Aspirus Keweenaw. Previously, Aspirus factor 2 permitted Regional Directors the discretion to direct mail-ballot elections based on either a recent increase in new confirmed COVID-19 cases or recent testing positivity rates in the county encompassing the employer’s facility, using data collected primarily by state and local governments. Today’s decision changes factor 2, which now allows Regional Directors the discretion to order a mail-ballot election in communities where the Centers for Disease Control (CDC) has determined that the risk of COVID-19 transmission in a particular community is “high,” based on the CDC’s county-based community level tracker. The remaining five factors of Aspirus remain the same. The Board decided to apply this latest Starbucks decision prospectively only, thus leaving undisturbed the mail-ballot election conducted in this case and other previously ordered mail-ballot elections. Accordingly, the Region will now proceed to open and count the ballots, which have been held pending this decision, to determine the employees’ wishes regarding union representation. “State and local governments often no longer provide the COVID-19 data in the manner that they did when the 2020 Aspirus decision was issued. Using the CDC’s tracker instead will allow Regional Directors to easily and consistently evaluate the safety of conducting in-person elections, while minimizing delay caused by disputes over the appropriate interpretation and application of COVID-19 data,” said Chairman Lauren McFerran. Chairman McFerran was joined by Board Members Wilcox and Prouty in making the update. Members Ring and Kaplan agreed that Aspirus should be revisited, but dissented from the majority’s decision to revise Aspirus without seeking public input. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html

Carla K. Coffman Named Assistant to the Regional Director in NLRB Region 14—St. Louis

Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Carla K. Coffman as the Assistant to the Regional Director of Region 14. With a Regional Office in St. Louis, Missouri, a Subregional Office in Overland Park, Kansas, and a Resident Office in Tulsa, Oklahoma, the staff of Region 14 is responsible for conducting elections, investigating unfair labor practice charges, and protecting the rights of employees throughout areas of Kansas, Oklahoma, Nebraska, Missouri, and Illinois. In her new position working in the Overland Park, Kansas office, Ms. Coffman will assist Regional Director Andrea J. Wilkes in the administration and enforcement of the National Labor Relations Act. A Kansas native, Ms. Coffman began her career with the Agency in 1991 as a Clerk-Stenographer (Group Secretary) and a year later was promoted from Secretary to the Regional Attorney. She entered the Bridge Program in 1996 and three years later, she was promoted to the position of Field Examiner. In this capacity, Ms. Coffman regularly handled complex investigations and elections and served as a mentor to many newer agents. In 2019, Ms. Coffman was promoted to the position of Supervisory Field Examiner, where she supervised a team of Field Attorneys and Field Examiners. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

NLRB Region-15 Wins Injunction Requiring Starbucks to Rehire Seven Unlawfully Fired Workers, Post the Court’s Order, and Cease and Desist from Unlawful Activities

On August 18, 2022, U.S. District Judge Sheryl H. Lipman of the District Court of Western Tennessee issued an injunction requiring Starbucks to reinstate seven unlawfully fired workers, rescind and expunge unlawful discipline issued to an employee, post the Court’s Order and translations in other languages, and cease and desist from unlawful activities. The injunction was issued based on a petition for temporary injunctive relief filed by Region 15 Regional Director Kathleen McKinney in May. Section 10(j) of the National Labor Relations Act authorizes the National Labor Relations Board to seek injunctions against employers and unions in federal district courts to stop unfair labor practices where, due to the passage of time, the normal Board processes are likely to be inadequate to effectively remedy the alleged violations. The petition explained that, after learning about the organizing effort, Starbucks directed a wide variety of coercive measures at its employees, including: disciplining the employee responsible for starting the campaign; more closely supervising its employees; closing the area of the store on days organizers had previously invited the public and customers to come to show support for the campaign; and removing all pro-union materials from the community bulletin board inside the store, including notes authored by customers expressing support for the employees and their campaign. Then, following increased media coverage and public support for the campaign, Starbucks terminated seven Union activists all on the same day, including five of the six members of the union organizing committee. "Today's federal court decision ordering Starbucks to reinstate the seven unlawfully fired Starbucks workers in Memphis is a crucial step in ensuring that these workers, and all Starbucks workers, can freely exercise their right to join together to improve their working conditions and form a union,” said NLRB General Counsel Jennifer Abruzzo. “Starbucks, and other employers, should take note that the NLRB will continue to vigorously protect workers’ right to organize without interference from their employer." “I’m proud of my employees for their hard work on this case,” said Region 15-New Orleans Regional Director Kathleen McKinney. “Region 15’s staff is dedicated to effectuating the National Labor Relations Act—including ensuring workers’ ability to freely choose whether or not they want union representation.” A union election was held at the Memphis store at which this unlawful activity occurred. The workers voted for representation by Workers United and the representative was certified on June 15, 2022. The employer must now bargain in good faith with the union. For more information contact us at: http://www.beverlyhillsemploymentlaw.com/

Lanita Cravey Named Birmingham, Alabama Resident Officer

August 10, 2022 Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo announced the appointment of Lanita Cravey as Resident Officer of the Agency’s Birmingham Resident Office, which reports to the Region 10-Atlanta Regional Office. In her new position, Ms. Cravey will assist Regional Director Lisa Y. Henderson in enforcing the National Labor Relations Act in the 41 counties in north and central Alabama. A native of Alabama, Lanita Cravey graduated from Birmingham-Southern College in 2000 with a Bachelor of Science degree. Thereafter, she joined the United States Navy and received her commission via Officer Candidate School in Pensacola, Florida. After military service, Ms. Cravey began working in the Agency’s Birmingham Resident Office in 2004. While working full-time, she earned a Master of Business Administration degree in 2007 from the University of Alabama in Birmingham. In 2009, she was converted to a Labor Management Relations Field Examiner via the Bridge Program. For more information, contact us at: http://www.beverlyhillsimmigrationlaw.com/