NLRB & Social Media

As a labor and employment mediator and arbitrator, I have been alternatingly intrigued and concerned about recent NLRB guidelines and ALJ rulings concerning use of and limitations on the use of social media.  See, e.g., Aug. 18, 2011 NLRB Office of General Counsel Report

Mediating Workplace Bullying Claims

As I have previously written, bullying is a hot topic today.   Cleaning House and Cleaning Up Our Acts - Anti-Bullying Legislation, and Bullying Legislation, Revisited.  As such, it is natural for alternative dispute resolution (ADR) practitioners to move into this field.  However, caution should be used in doing so, and practitioners should consider in each case whether mediation is appropriate and, if so, what it should look like.

In the Fall 2011 issue of the ACR Conflict Resolution Quarterly, Vol. 29 No. 1, Moira Jenkins asks Is Mediation Suitable for Complaints of Workplace Bullying? Although she herself does not appear to come to any firm conclusions, the article raises a number of helpful points to be considered by managers and individual ADR practitioners consider the issue.  First, as Ms. Jenkins observes, bullying is often not well defined, and in the workplace bullying may be confused with a number of other activities that are similar but nonetheless distinct. 

Recent Employment Law Decisions--Fees Shifting, Exhaustion and Preclusion

My arbitration, mediation and ALJ practice is booming these days, as is my guardian ad litem (GAL) practice.  As a result, I am woefully behind on my blogs, with a pile of items to review and write up.  I'm not sure how the really prolific--or even moderately prolific--bloggers do it, once their practice picks up.  In any event, here is a belated summary of recent New Mexico employment law cases.

Employee Deemed Constructively Discharged After Successful Mediation

In a recent employment law case, the New Mexico Court of Appeals affirmed a jury verdict awarding an NMSU employee almost $125,000 in damages for retaliation and constructive discharge claims. The decision was largely unremarkable in its analysis and discussion:  that actions occurring before the statute of limitations can be considered under the continuing violation doctrine; and that the sufficiency of evidence is a high standard of review under which the appellate courts will not substitute their judgment for that of the fact-finder.

Far more intriguing to me, however, what was left unsaid in the decision:  how the Court came to conclude that an employee was constructively discharged in spite of obtaining an apparently successful and agreeable settlement through mediation that altered the original, offenses conditions of employment.

Bullying Legislation, Revisited.

I have previously written about bullying legislation with considerable suspicion. To summarize, "I'm not a fan." Specifically, I expressed the view that it's impractical, over-burdensome on business, concerns a fuzzy, subjective term that cannot be uniformly applied or understood, and reflects a policy conclusion is not empirically established at all, at this point, e.g., that forceful/aggressive employees are "bad" for business and meeker/milder employees are "good", and that we need to run one group out in favor of another.

Recently, however, I've explored the matter further with colleagues, through a question posed by Marc Brenman on ADR, Conflict Resolution and Mediation Exchange--"Bullying: Amenable to legislated approaches?"  Ultimately, although I appreciate that my view and understanding of workplace "bullying" has been broadened and enhanced considerably, I come to the same conclusion regarding the efficacy and desirability of anti-bullying legislation.

Albuquerque Labor Board Unable to Agree on Neutral Appointment

The City of Albuquerque's Labor Management Relations Board--currently comprised of the Labor and Management appointments, Justin Lesky and Barbara Stephenson respectively--met today at 9:00 a.m. at the Mesa Del Sol Building, but were unable to reach a decision on the neutral appointment.  The Labor rep is looking for a candidate with specific labor experience, while the Management rep appears to be looking for a candidate who has a track record representing both sides of the table in either labor or employment matters.