Scott Faust

scott-faust.jpgScott A. Faust is a Partner in the Labor & Employment Law Department, co-head of the Strategic Planning & Corporate Due Diligence Group and a member of the Labor-Management Relations Group, resident in the Boston office. He focuses his practice on all aspects of labor and employment law, and regularly handles collective bargaining negotiations, arbitration, mediation and litigation of labor and employment disputes on behalf of his clients.

With respect to labor-management relations, Scott represents employers in collective bargaining negotiations, grievance arbitrations, union organizing campaigns, work stoppages, labor injunction proceedings and proceedings before the National Labor Relations Board. He also has extensive experience advising troubled companies and their creditors, as well as investors reviewing potential opportunities in labor intensive industries. Scott has negotiated numerous collective bargaining agreements with the United Steelworkers in Massachusetts, Pennsylvania, Ohio, West Virginia, Louisiana, Maryland, Texas, Indiana, Illinois, Michigan, South Carolina, Tennessee and Colorado. In addition, he has also negotiated agreements with the Canadian Auto Workers, SEIU, Teamsters, Machinists, Operating Engineers, Carpenters, Painters, United Plant Guard Workers, Electrical Workers, Sheet Metal Workers, Food and Commercial Workers, Massachusetts Nurses Association and Typographers unions.

Scott also represents employers in connection with the litigation of labor and employment disputes in state and federal courts and administrative agencies, as well as in mediation and arbitration. Cases he has handled include matters involving wrongful discharge, ERISA, employment discrimination, related employment torts, enforcement of or defending against non-competition agreements, wage and hour issues, and administrative proceedings before state and federal equal employment opportunity enforcement agencies. He has litigated cases in state and federal courts in Massachusetts, Pennsylvania, West Virginia, Ohio, Utah, Colorado and North Carolina, including cases on appeal to the U.S. Courts of Appeals for the First and Tenth Circuits.

Scott provides day-to-day counseling in matters such as reductions-in-force, legal issues related to the cultural diversity of the workplace, reasonable accommodation under the Americans with Disabilities Act, employment contracts and non-competition agreements, development of employee manuals, wage-hour compliance, child labor laws and general employee relations matters.

In addition, Scott has published articles and given recent presentations on such subjects as Trends in Private Sector Collective Bargaining, Electronic Communications in the Workplace, Physician Organizing and Preventive Techniques to Avoid Liability for Harassment in the Workplace. Scott has been ranked in Chambers USA as a leader in labor and employment law.

 

Entries authored by Scott Faust

Rhyme or Reason? Trying to Make Sense of the NLRB's Social Media Cases

Posted by Scott Faust on October 12, 2011

Since the NLRB’s Office of the General Counsel (“OGC”) issued the first “Facebook” complaint in American Medical Response of Connecticut, Inc. in October, 2010, dozens of unfair labor practice charges involving social media have been filed, the Acting General Counsel has identified social media cases as a priority, and gallons of electronic ink have been spilled by commentators and the OGC, itself, trying to help employers and their counsel make sense of it all.  The law is still developing – it has only been a few weeks since an ALJ rendered the first decision in a Facebook case – but thus far, social media cases have been evaluated and decided on the basis of existing legal principles.  There has been no indication that existing rules will be modified or adapted to meet the realities of the digital world, despite fundamental differences in the character of on-line communications versus more traditional forms of employee communication.  Though the rules may be familiar, applying them to social media cases is a challenge.

The majority of cases generally fall into two categories, with some overlap: (1) those involving discipline based upon employee conduct on social media sites and (2) those challenging employer social media policies as overbroad and unlawful restrictions on employees’ rights under the NLRA.  With the stated intention of offering assistance to labor law practitioners and HR professionals, NLRB Acting General Counsel Lafe Solomon issued a report this past August explaining the rationale underlying the OGC’s decisions in a sampling of the key social media cases within the last year (OM 11-74 Report of the Acting General Counsel Concerning Social Media Cases). 

When is employee conduct on social media sites protected by the NLRA?

The cases to date make clear that existing standards defining protected concerted activity will be used to evaluate employees’ social media activities.  Non-union employers must not lose sight of the fact that their employees are also protected by the NLRA and these standards apply whether or not employees are represented by a union. 

  • An employee’s activity is concerted when the employee: 
    • acts with or on the authority of other employees;   
    • seeks to initiate or to induce or to prepare for group action;
    • brings “truly group complaints” to management’s attention. 
  • Discussions between or among employees must be “a logical outgrowth” of group action or collective goals. 
  • An employee’s activity is not concerted when the employee acts alone or on behalf of him or herself, regardless of whether other employees may benefit and regardless of whether the object of the employee’s action is something about which other employees would be concerned.   
  • Disparaging comments about an employer, including supervisors, are generally protected, but they may lose the Act’s protection when they: 
    • are unrelated to a dispute over working conditions; 
    • focus only on the employer’s products or business policies, particularly if the criticism comes at a “critical time” for the employer 
    • are reckless or maliciously untrue; 
    • are appeals to racial, ethnic or similar prejudices; o 
    • are insulting or obscene personal attacks that cross an ill-defined “I know it when I see it” line of propriety.

The difficulty of applying these principles to social media cases is aptly illustrated by the first “Facebook” case to be decided by an ALJ, Hispanics United of Buffalo, Inc., which was decided on September 2, 2011.  In that case, the ALJ found that a nonprofit, non-union employer violated the NLRA by terminating five employees who had engaged in protected concerted activity.  Specifically, they had engaged in a Facebook discussion concerning another employee’s criticism of their job performance that included vulgar language.  In so ruling, the ALJ recognized that individual action can be protected as concerted action as long as it is engaged in with the object of initiating or inducing group action.  The facts of the case, however, indicate that there was no evidence of the terminated employees’ intent to take group action beyond their Facebook postings.  The ALJ nonetheless concluded that the terminated employees were “taking a first step towards taking group action,” and by terminating them, the employer prevented them from taking any further group action.  

Distinguishing Hispanics United from cases in which no concerted activity was found -- e.g., where an individual employee posted a complaint that received supportive messages from co-workers but did not otherwise manifest any intent to induce group action -- can be challenging.  For example, in another case discussed in the Acting GC’s report, Wal-Mart, No. 17-CA-25030, the OGC declined to issue a complaint where an employee was disciplined for posting vulgar comments to his Facebook page that were critical of local store management.  Although other employees submitted supportive comments, the OGC found that the postings were an expression of an individual gripe that was not protected concerted activity.  In so finding, the OGC noted that the Facebook posts contained no indication of the employee’s intent to initiate or induce group action – just like the Facebook posts in Hispanics United.  

Though the Wal-Mart case and several others described in the Acting GC’s Report manifest the OGC’s recognition that there are limits to the scope of protected concerted activity in the social media context, the conclusion by the ALJ in Hispanics United that the terminated employees’ Facebook posts were protected because they were “taking a first step towards taking group action” presents employers with the difficult task of deciding when to infer an individual employee’s intention to take group action and when to treat a post as an individual complaint.  In this regard, the fact that all five employees who participated in the Facebook exchange were terminated was significant.  The ALJ specifically found that the employer’s termination of all five employees for their Facebook postings established that the employer viewed the five as a group and that they were engaged in concerted activity.  

Though these cases are highly fact-specific, and though application of the operative legal principles to the facts of each case can be difficult, a few guidelines do emerge from the body of cases reported thus far: 

  • Employee conduct on social media sites that expressly engages co-workers or seeks to promote group action with respect to an issue related to terms and conditions of employment will be protected.
  • An individual employee’s social media post will likely be protected if it suggests implicitly or explicitly an intention to promote group action or support, particularly if it solicits co-worker comments.
  • An individual employee’s social media post that does not expressly solicit co-worker input but nonetheless generates co-worker comments that grow into a substantive conversation concerning terms and conditions of employment may well be protected.
  • An individual employee’s social media post that is neither directed to co-workers nor engages co-workers, or a post that does not address issues of mutual concern to other employees will likely be treated as an unprotected individual gripe or complaint.
  • Disparaging comments concerning the employer and/or supervisors will be protected, even if they include vulgar or rude language, unless they are so outrageous or offensive as to lose the protection of the NLRA.
  • Discriminatory comments or posts that advocate unlawful action will not be protected.

In applying these guidelines, employers are well advised to consider the NLRB’s renewed emphasis on protecting employee rights to engage in protected concerted activity, as well as its general interest in expanding employee access to digital media and facilitating employee communication.  They should also be mindful of the Acting General Counsel’s aggressive posture in these cases.  Accordingly, before implementing disciplinary action, employers should consult with counsel and carefully weigh the risks of running afoul of the emerging law in this area.

What is the lawful scope of a social media policy?

As in the employee discipline cases, cases involving challenges to employers’ social media policies as overbroad and unlawful restrictions on employee rights under the NLRA have also, thus far, applied well-established legal principles without modification or adaptation to any particular attributes of social media communications: 

  • An employer violates NLRA Section 8(a)(1) through the maintenance of a policy that “reasonably tends to chill” employees in the exercise of their rights under Section 7 of the Act to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 
  • If the policy does not explicitly restrict Section 7 activities, it is unlawful only upon a showing that (1) employees would reasonably construe the language to prohibit protected activity, (2) the policy was promulgated in response to union activity, or (3) the policy has been applied to restrict the exercise of Section 7 rights.

As in the social media disciplinary cases, the cases involving challenges to social media policies are highly fact-specific.  Examples of unlawful policies addressed in the Acting GC’s Report include:

  • Prohibition against posting pictures that depict the company was unlawfully overbroad because it would prohibit employees from engaging in a protected activity like carrying a picket sign or wearing a t-shirt portraying the company’s logo in connection with a labor dispute.
  • Prohibition in hospital social media policy against communications that compromise privacy, embarrass or defame the hospital or its staff, or damage the goodwill of the hospital was unlawfully overbroad where the policy did not define what the hospital considered to be private or confidential, nor did it contain a disclaimer informing employees that it did not apply to protected Section 7 activity.
  • Prohibition against posting anything that would disclose “inappropriate or sensitive” information about the employer was unlawful in the absence of any definition or guidance as to the nature of the prohibited subjects.
  • Prohibition against using the company name, address or other information in employees’ personal profiles was unlawfully overbroad because it interfered with employees’ ability to find and communicate with their coworkers on-line and was not narrowly drawn to protect a legitimate interest of the employer.
  • Prohibition against revealing personal information regarding co-workers without their consent was unlawfully overbroad and could be reasonably interpreted as restraining employees’ Section 7 right to discuss wages and other terms and conditions of employment.
  • Prohibition against “disrespectful conduct” or “rude or discourteous behavior,” was unlawfully overbroad where the policy did not contain a disclaimer informing employees that it did not apply to protected Section 7 activity.

Two unifying themes emerge from the unlawful policies summarized in the Acting GC’s Report:

  1. They were not narrowly tailored to serving a well-defined, legitimate business need; and
  2. Their broadly worded prohibitions could reasonably be read to restrict employees’ exercise of protected Section 7 rights and they did not disclaim any such unlawful intention. 

Indeed, one of the lawful policies addressed in the Acting GC’s Report aptly illustrated these points.  That policy instructed employees to respond to all media inquiries by (i) replying that that they were not authorized to comment for the employer or did not have the information being sought, (ii) taking the name and number of the media organization, and (iii) relaying the information to the employer’s public affairs office.  The OGC concluded that this policy was lawful because it served the employer’s legitimate business interest of communicating to the media with one voice, and it was not so broadly worded as to lead employees reasonably to think they were prohibited from exercising Section 7 rights to talk to the media on their own behalf about their working conditions.

Employers are well-advised to implement and enforce social media policies.  Whether the workplace is unionized or not, however, such policies must not be so broadly worded as to explicitly or implicitly restrict employees’ right to engage in protected concerted activities or to discourage (or “chill”) employees’ exercise of their rights.  Policies should clearly articulate the legitimate business interests sought to be protected or achieved through the policy, and the restrictions should be narrowly tailored to serve those legitimate interests.  Though disclaimers are not required, and though they do not, in and of themselves, provide an absolute defense, the inclusion of express language disclaiming any intention to restrict employee rights under the NLRA can be helpful to defeat claims that employees may reasonably interpret the policy to restrict their rights.

This is a rapidly evolving area, and with so many cases in the pipeline, the law is sure to continue to develop.  We will keep you posted on those developments.

NLRB to Healthcare Employers Facing a Strike: You Can Ask, But Employees Don't Have to Tell

Posted by Scott Faust on July 06, 2011

In a 2-1 decision issued on June 30, 2011, the NLRB clarified the interplay of the statutory notice requirements of NLRA Section 8(g) with a health care employer’s right to poll individual employees’ intention to report to work during a strike and the employer's right to enforce neutral work rules requiring patient care employees to provide advance notice of absence.  In Special Touch Home Care Services, Inc, 357 NLRB No 2 (2011).pdf, the Board: 

  • confirmed that Section 8(g)’s requirement of ten days’ advance written notice of a strike at a healthcare institution applied to unions only and did not apply to individual employees; and  
  • ruled that a home health agency violated the NLRA by failing immediately to reinstate striking home health aides who failed to provide notice of their intent to strike in response to the employer’s pre-strike poll or otherwise comply with the employer’s non-discriminatory rule requiring advance notice of absence. 

NLRA Section 8(g) requires unions to provide healthcare employers with ten days advance written notice of a strike.  In Special Touch, a union that was attempting to organize the employer’s home health aides provided a Section 8(g) notice that employees would be engaging in a three-day strike.  Upon receipt of the notice, the employer polled employees scheduled to work during the impending strike.  Of the employees polled, 75 who participated in the strike informed the employer of their intention to do so.  Forty-eight employees also participated in the strike but failed to provide any notice of their intent to do so, either in response to the employer’s poll or by otherwise providing notice of their absence in accordance with the employer’s call-in rule requiring at least two hours’ advance notice of absence.  After the strike, the employer immediately reinstated the 75 employees who had provided notice.  The remaining 48 employees were not immediately reinstated, and some of those who eventually were reinstated did not return to their previous position. 

The Board’s decision in Special Touch was rendered in response to a specific question asked by the Second Circuit in connection with its remand of the Board’s petition seeking enforcement of a prior ruling against the same employer.  Special Touch Home Care Services, Inc, 351 NLRB 754 (2007).pdf.  In partially denying enforcement, the Second Circuit identified the need to balance several competing interests and instructed the Board to determine whether the employer 

may enforce its call-in rule and mandate compliance with its [pre-strike] survey, reasonably relying on the results of both, in light of Section 8(g)’s requirement that only unions and not individual employees are required to give notice to health care employers. 

NLRB v. Special Touch Home Care Services, 566 F.3d 292, 300 (2d Cir. 2009). 

The Board concluded that Section 8(g) already struck a careful balance of the parties’ competing interests: by requiring unions to give ten days’ notice of a strike, Section 8(g) protects healthcare employees’ right to strike while ensuring healthcare institutions have sufficient advance notice of a strike to permit them to arrange for continuity of patient care.  The Board rejected the employer’s arguments that it was entitled to punish striking employees who violated its call-in rule and/or who did not respond truthfully to the employer’s pre-strike survey, stating that to do so would “effectively impose an individual notice obligation on health care employees, when Congress chose not to impose any such obligation.”  The Board did recognize that healthcare employers, like non-healthcare employers, can discipline particular employees who cease work without taking reasonable precautions to protect the employer’s plant, equipment or patients “from reasonably foreseeable imminent danger due to sudden cessation of work,” but it concluded that the facts of the case did not meet that standard.

In dissent, Member Hayes concluded that the employer had a compelling business justification for requiring compliance with its call-in rule and that the corresponding burden on employees’ exercise of their right to strike was minimal.  In his view, an appropriate balance could be struck by requiring employees who did not want to disclose their intent to strike in response to the employer’s poll to simply call in to report that they would be absent without identifying any reason.  Indeed, he suggested, the Board’s ruling “gives unions and their employee supporters the opportunity to increase the disruptive impact of a strike by deliberately giving false answers in response to a poll, thus eviscerating the poll as an effective aid in arranging for continuing patient care.”

So what’s a healthcare employer to do upon receipt of a Section 8(g) strike notice?  Can it ask employees whether they intend to report to work during the strike?

Healthcare employers clearly have the right to poll employees to assess the need to arrange for replacement workers.  The Board in Special Touch reaffirmed prior decisions holding that employers conducting such a poll must:

  1. explain fully the purpose of the questioning;
  2. assure the employees that no reprisals will be taken as a result of their response; and
  3. refrain from otherwise creating a coercive environment.

Citing, Preterm, Inc 240 NLRB 654 (1979).pdf.  Special Touch makes equally clear, however, that employers have no means to compel truthful responses to their poll, nor may they rely upon existing work rules requiring employees to provide advance notice of an absence.  Thus, if a healthcare employer decides to conduct such a poll, it must assess the reliability of the poll results and balance that reliability assessment with the costs associated with arranging for contingency staffing and the impact on patient care if insufficient staffing is available during the strike.

NLRB Issues Complaint in NY Facebook Case

Posted by Scott Faust on May 20, 2011

In its latest effort to address social media in the workplace, the National Labor Relations Board announced in a May 18 press release that it had filed a complaint against a New York non-profit organization alleging that it unlawfully terminated five employees who complained about working conditions on Facebook.

According to the complaint filed by Buffalo Regional Director Rhonda Ley, Hispanics United of Buffalo’s termination of five employees who criticized workload and staffing conditions on Facebook constituted an unfair labor practice. 

The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook page a coworker’s allegation that employees did not do enough to help the organization’s clients.  The initial post generated responses from four other employees who defended their job performance and criticized working conditions, including workload and staffing issues. After learning of the posts, Hispanics United discharged all five employees, claiming that their comments constituted harassment of the employee originally mentioned in the Facebook post.

The complaint alleges that the Facebook discussion was protected concerted activity under Section 7 of the National Labor Relations Act because it involved a conversation among fellow employees about the terms and conditions of their employment, including their job performance and staffing levels.  A hearing is scheduled for June 22, 2011.

In its recent settlement of a similar case involving an employer in Connecticut, American Medical Response (AMR), the NLRB warned employers against maintaining policies that restrict the right of workers to discuss jobs conditions with coworkers using social media.  Unlike the AMR case, the NLRB complaint against Hispanics United does not allege that the employer maintained an unlawful policy; the complaint focuses exclusively on the employer’s termination of the five employees who participated in the Facebook conversation.  Moreover, whereas the AMR case involved unionized employees, the five employees terminated by Hispanics United were non-union employees – illustrating the fact that Section 7 rights extend to all employees, whether unionized or not.

The Hispanics United complaint also follows closely on the heels of a highly publicized case involving Twitter, in which the NLRB declined to issue a complaint against the Arizona Daily Star.  Based on the Hispanics United complaint and the Board’s press release announcing issuance of the complaint, however, it appears that the factors that led the Board to decline to issue a complaint in the Arizona Daily Star case -- which involved a single employee's inappropriate and offensive Twitter posts on subjects unrelated to terms and conditions of employment – are not present in the Hispanics United case.

The Hispanics United complaint further reinforces the Board’s focus on social media issues in the workplace.  Indeed, Acting General Counsel, Lafe Solomon, has indicated that there were social media cases pending in every Region.  Further, citing significant policy issues and lack of precedent, an April 12, 2011 memorandum issued by the Acting General Counsel directed Regional Directors to submit all cases involving “employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter” to the Division of Advice before any taking any action.

Given the Board’s focus on social media issues and the apparent volume of pending cases implicating these issues, we expect this to be a rapidly developing area to which employers should pay close attention.  We will continue to monitor the Board’s views on social media and provide updates on significant developments.  In the meantime, employers should review existing policies and consider the Board’s emerging position on this issue when disciplining employees for behavior that may be considered to fall within the expanding scope of protected concerted activity.

NLRB Acting General Counsel Clarifies Duty to Provide Information in Bargaining

Posted by Scott Faust on May 18, 2011

In a May 17 memorandum, NLRB Acting General Counsel Lafe Solomon furnished guidelines to Regional Directors concerning parties’ obligation to provide information in collective bargaining negotiations. 

GC Memorandum 11-13  traces the development of two different analytical frameworks for assessing a party’s obligation to provide requested information to its bargaining counterpart.  The first applies to cases involving a union request for financial information in response to an employer’s general claim of inability to pay certain wages or benefits.  The second applies to cases involving a party’s request for specific information related to more limited bargaining claims by its bargaining counterpart.  The principal purpose of the memo is to stress the importance of distinguishing between these two types of cases and applying the proper analytical framework to each. 

General Principles

Basic principles governing both parties’ obligation to produce requested information in bargaining include the following.

  • The duty to bargain in good faith imposes on both parties a parallel obligation to provide relevant information upon request. 
  • Information concerning employees’ terms and conditions of employment is presumptively relevant. 
  • The party making the request bears the burden of demonstrating the relevance of the requested information. 
  • The threshold for relevance is a liberal, discovery-type standard; the requested information must merely have some bearing on the issue between the parties, and the requesting party need show only potential or probable relevance.

In NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), the U.S. Supreme Court  held that an employer violated Section 8(a)(5) of the Act by refusing to provide the union with financial information relevant to the employer’s claim that it could not afford a wage increase sought by the union.  In so ruling, the Court also emphasized more broadly that, when either party makes factual assertions in bargaining, it may be obligated to share information relevant to those specific factual assertions.

Analysis of Union Requests for General Financial Information

Truitt made clear that the assessment of whether an employer has exposed itself to a union request for financial information by claiming an inability to pay -- as opposed to an unwillingness to pay -- turns on the particular facts and context of each case.  No “magic words” are required for an employer to be deemed to have claimed financial hardship.  The obligation to provide general financial information arises whenever an employer’s statements and actions convey an inability to pay, and the Board and courts will evaluate an employer’s statements in the context of the particular case at hand.  GC Memorandum 11-13 observes that such case-specific analysis has led to seemingly inconsistent results, but it also recognizes that there is no bright-line test to clarify the fact-intensive analysis mandated by Truitt.

Analysis of a Party’s Request for Specific Information Related to Bargaining Claims

At times, an employer may base a bargaining position on factors that are related to certain business conditions but do not constitute an inability to pay, e.g., a need to maintain competitive pricing.  In such cases, the Acting General Counsel notes that the Board and the courts have not always been consistent in their analytical approach.  These are the types of cases with which GC Memorandum 11-13 is most concerned, and the memo advises Regional Directors not to overlook the significance and relevance of information requested in response to bargaining claims that do not rise to the level of a claim of inability to pay.  Such limited claims may well trigger a valid request for information specific to the particular claim at issue.

In this regard, the memo takes issue with the Board’s 2006 decision in North Star Steel Co., 347 NLRB 1369-70 (2006), in which the Board found that a union’s request for information regarding the employer’s competitors was not relevant because the employer had not claimed inability to pay.  Instead, the employer claimed an inability to compete.  In ruling that the employer had no obligation to produce a list of competitors, the Board restricted its analysis to whether or not the employer had claimed an inability to pay.  The memo criticizes the Board for not considering the employer’s claim of competitive disadvantage, and instead, confining its analysis to whether the employer had claimed financial hardship.

The memo cautions Regional Directors not to evaluate all claims for requested information on the basis of whether an employer has claimed financial hardship.  Rather, it advises the Regions to differentiate between requests for general financial information made in response to claims of an inability to pay from other more limited information requests made in response to bargaining claims that may be subject to specific evaluation.

Conclusion

The GC’s memo sensitizes Regional Directors to:

  1. the importance of evaluating requests for information on the basis of a fact-specific analysis of the requested information’s relevance; and
  2. the distinct analytical frameworks to be applied to cases involving an employer’s asserted inability to pay and those involving more limited justifications that do not rise to the level of financial hardship. 

Employers confronted with union information requests must evaluate the specific relevance of the request to bargaining issues on the table or to bargaining positions that the employer has taken in the course of negotiations.  The union bears the burden of demonstrating the relevance of any requests it makes, but in evaluating any such explanation, the employer should apply a liberal, discovery-like standard of relevance.  If the employer does not do so, the Board will, and the employer will be exposed to the risk of an 8(a)(5) charge.