Ombuds Perspective on Whistleblowing Laws

Last week, we had wonderful talk entitled Blowing the Whistle on Whistleblowing Laws.  Attorney Charles L. (Chuck) Howard is one of the few attorneys in the U.S. with extensive expertise in the legal issues of ombudsmen. Howard has a national practice in representing organizational ombudsmen at universities, multinational corporations, and research institutions.  His new book, entitled The Organizational Ombudsman: Origins, Roles and Operations–A Legal Guide, was just published by the American Bar Association (ABA) and is the nation’s definitive resource book about ombudsmen, mediation, and their impact in the workplace.

In this presentation, he explored how fear of retaliation limits the effectiveness of whistleblower laws and policies. There are hundreds of whistleblower laws in the United States that provide incentives for people to report misconduct and prohibit retaliation against them for doing so. While recoveries from laws like the False Claims Act are significant, the perception — and often the reality — of what happens to whistleblowers who do come forward is that they pay dearly for their actions. In addition to trying to reward whistleblowers, why are we not also looking for better ways to help people address workplace conflict or misconduct without having to be a whistleblower? Howard argued that an organizational ombudsman can help an organization address this gap between encouraging the reporting of misconduct and protecting those who raise issues.

Several of my students’ comments about the talk are below: 

Continue ReadingOmbuds Perspective on Whistleblowing Laws

Notice to Employees of Rights Under the National Labor Relations Act

On August 30, 2011 the National Labor Relations Board (“NLRB” or “Board”) published a final rule in the Federal Register entitled “Notification of Employee Rights under the National Labor Relations Act” (“Act”).” See 75 Fed. Reg. 80411 (Aug. 30, 2011). Effective November 14, 2011 private sector employers subject to the jurisdiction of the Act are required to post a notice of employee rights (“Notice”) informing employees of their rights under the Act. The rule had been pending since December 2010 and was issued by a 3 to 1 vote with Board Member Brian Hayes dissenting. See 75 Fed. Reg. 80411, § IV.

In addition to listing several examples of unlawful behavior under the Act and providing instructions to employees on how to contact the NLRB with questions or possible violations of the Act, the Notice also affirmatively states that employees have the right to

• Organize a union to negotiate with their employer concerning their wages, hours and other terms and conditions of employment.

• Form join or assist a union; bargain collectively through representatives of employees’ own choosing for a contract with their employer setting their wages, benefits, hours, and other working conditions.

• Discuss their wages and benefits and other terms and conditions of employment or union organizing with their co-workers or a union.

• Take action with one or more co-workers to improve their working conditions by, among other means, raising work-related complaints directly with their employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

Employers are required to post the Notice in conspicuous places where the Notice is readily seen by employees, including all places where notices to employees concerning rules or policies are customarily posted. In addition to the physical posting, the rule requires employers to post the notice electronically if personnel rules and policies are customarily posted in that manner.

Continue ReadingNotice to Employees of Rights Under the National Labor Relations Act

The Uncertain Future of Multiemployer Benefit Plans

Multiemployer benefit plans, writes Paul Secunda, “once represented one of the greatest triumphs in American labor relations in providing employee benefits to workers of small employers in itinerant industries (such as in building and construction, trucking, retail, and the entertainment industry).” In a new paper on SSRN, Paul explores three major challenges facing multiemployer plans. First, in the wake of the global recession of 2007-2009, “benefit plans are increasingly underfunded and in danger of becoming insolvent.” Second, as a result of health benefits that are perceived as overly generous, some plans may face a large new excise tax under the Patient Protection and Affordable Care Act of 2010. Finally, recent judicial decisions have created uncertainty and increased liability risks when plan trustees deny claims.

Paul considers a variety of policy responses to some of these challenges, but it appears there are no easy fixes.

Paul’s paper, entitled “The Forgotten Employee Benefit Crisis: Multiemployer Benefit Plans on the Brink,” will appear in the Cornell Journal of Law and Public Policy.

Continue ReadingThe Uncertain Future of Multiemployer Benefit Plans
Newer Posts
Older Posts