(Cross-posted at the Mass High Tech site)
The Young Tech Company's Introduction to the NLRA and Confidentiality
By Terry Klein and Matthew T. Henshon
“The National Labor Relations Act? I thought that was for Big Labor. What’s that got to do with my growing tech company?”
Potentially, a lot.
The First Circuit Court of Appeals has helpfully reminded employers in the private sector that the NLRA has a broader reach than they might think. Historically, the NLRA was enacted to protect the rights of employees and employers to engage in collective bargaining. It codifies the rights of employees to organize, establishes the National Labor Relations Board, governs union elections, and forbids certain unfair labor practices by employers and union organizations. Examples of such practices include employer interference in employees’ efforts to organize, an employer’s refusal to bargain with employee representatives (and vice versa), and conduct by unions that amounts to coercing employees to organize or employers to enter into collective bargaining agreements.
But the language of the NLRA is very broad, invoking a different era when many – if not most – employers faced the prospect of a unionized workforce. And that broad language could still apply to a “New Economy” company.
Earlier this week, the court issued a decision that could affect all employers that include confidentiality provisions in employment agreements, whether they are union shops or not. The court found that one such employer had engaged in an unfair labor practice when it terminated an employee for violating one such confidentiality provision. It did so in spite of the fact that the employer’s workforce was not unionized, and in spite of the fact that the employer was terminated for discussing the terms of his employment with one of the employer’s clients, as opposed to one of his coworkers. Employers that include confidentiality provisions in their employment agreements would be well served to review those provisions to ensure that they comply with the NLRA.
NLRB v. Northeastern Land Services Ltd. presented the First Circuit with the question of whether including a confidentiality provision in an employment agreement constituted an unfair labor practice. While a 2009 First Circuit opinion in the same case concentrated on NLRB procedure (and was vacated by the U.S. Supreme Court), the latest decision returns the focus to the substantive interplay between the NLRA and employee confidentiality agreements.
NLS is a temporary employment agency that supplies workers to companies in the natural gas and telecommunications industry. The employee who filed the unfair labor practices charge with the NLRB signed a temporary employment contract stating that he “understands that the terms of this employment, including compensation, are confidential to Employee and the NLS Group. Disclosure of these terms to other parties may constitute grounds for dismissal.” In connection with a dispute with NLS over reimbursable expenses, the employee notified the temp agency’s client that he would be offline until the dispute was resolved. NLS terminated him. He responded by filing a charge with the NLRB. It was undisputed that NLS had not terminated him for discussing the terms of his employment with fellow employees in connection with a union organizing effort, but instead for disclosing terms to a client. The First Circuit is silent as to whether other NLS employees were union members or were seeking to organize collectively.
The court nonetheless concluded that the provision at issue violated Section 8(a)(1) of the NLRA and that by terminating an employee for violating the provision, the employer had engaged in an unfair labor practice. Stating the broader rule, the Court held that a confidentiality provision is unlawful if (1) employees would reasonably construe it to forbid organizing activity, (2) it was promulgated in response to union activity, or (3) the provision has been used to restrict the exercise of organizing rights. Firing an employee for taking issue with the terms of his employment, the court stated, “went to a prime area of concern” under the NLRA.
The First Circuit’s restatement of its 2009 decision should prompt employers to review employment agreements that include confidentiality provisions. While temporary employment agencies will certainly want to subject their agreements to close examination, other employers for which confidentiality provisions are important should also take note.
The court does not, of course, hold all confidentiality provisions to be automatically void. Narrow provisions that prohibit disclosure of “company business and documents”, for example, are most likely lawful. But, as the court decision makes clear, the mere inclusion of a confidentiality provision can violate the NLRA. And terminating an employee for acting contrary to the provision will constitute still another violation. In NLS’s case, the NLRB forced the company to rehire the employee and pay him damages related to his termination.
Technology companies are not fertile grounds for the type of union organizing that the NLRA is intended to protect, to be sure. But in the context of an employment dispute – say, attempting to enforce a non-compete provision against a former employee – an enterprising employee would be sure to use a broad confidentiality provision and a potential NLRA claim as leverage. Whether located in the First Circuit or not, businesses would be wise to make sure their confidentiality provisions are narrowly tailored to fit specific business needs.
Friday, June 24, 2011
Monday, May 9, 2011
Why No Talk of Suspension?
After turning the ball over in the third quarter of Saturday night's game, a perhaps frustrated Dwayne Wade of the Heat proceeded to (i) grab Rajon Rondo and (ii) swing his legs under him, while throwing Rondo to the ground. It's Rondo's dislocated elbow that has gotten all the attention (with the video -- rated at least PG-13 -- here.)
Rondo got hurt on the play. Although he came back into the game, it's unclear whether he will be able to play tonight, in an important Game Four, and his one-armed effectiveness is definitely at issue.
Was Wade intended to hurt Rondo? It's clear that he intended to foul the Boston point guard, mostly like to prevent the kind of break-away that occurred later (after Rondo returned) off of a comatose Chris Bosh. (Although as Jeff Van Gundy notes on the telecast "the ball was already out of bounds.")
Moreover, it was not Wade's first foul, nor first overtly-aggressive play of the day, or the series.
In addition, the Heat themselves, doth protest too much after the game. Here's Wade: "We play this game as competitors..You never want to see anyone get hurt, no matter what it is, what kind of injury it is. Kudos for him for coming back." (emphasis added)
Wade yesterday: “It’s a physical game, the game of basketball is a physical game. I’m not a dirty player, it’s physical. Everyone falls to the ground, everyone gets hurt, people get up.”
Here's teammate LeBron James: "You definitehttp://www.blogger.com/img/blank.gifly don’t want to see anyone have freak injuries. The competitors that we all are, us against Boston, you definitely don’t want to see nothing like that happen. Injuries aside, you hope the best for him. You hope that it’s not as bad as it looked. You hope it’s not something that affects him long term."
Finally, Heat Coach Erik Spoelstra: “I’m not answering questions about that. I’m done with that. Moving on....It looked like a normal contact foul...[Rondo] just landed on it wrong. Those things happen. There was a lot of contact. Some of the plays were a lot more physical than that, where guys didn’t get hurt. Those are tough plays."
No flagrant foul was called on the play by the officials at the game. However, the NBA rule book permits the League Office to post-facto assess fouls as "Flagrant-1" or "Flagrant-2" fouls after the fact, making its assessment on factors including:
1. The severity of the contact;
2. Whether or not the player was making a legitimate basketball play (e.g., whether a player is making a legitimate effort to block a shot; note, however, that a foul committed during a block attempt can still be considered flagrant if other criteria are present such as recklessness and hard contact to the head);
3. Whether, on a foul committed with a player's arm or hand, the fouling player wound up and/or followed through after making contact;
4. The potential for injury resulting from contact (e.g., a blow to the head and a foul committed while a player is in a vulnerable position);
5. The severity of any injury suffered by the offended player; and
6. The outcome of the contact (e.g., whether it led to an altercation).
In the NHL, the players on the ice would tell an observer whether the foul (or hit, in hockey) was seen as a clean but unfortunate injury, or something more sinishttp://www.blogger.com/img/blank.gifter. In baseball, we'd know the next time Wade came to the plate.
With no fighting, no beanballs, and no true enforcers in a post-Pacers NBA, the retribution -- if required by the Code of the Game -- will be more subtle. Celtics Coach Doc Rivers, perhaps already anticipating a tough-guy response from some of his players (mostly likely Kevin Garnett), tried to defuse the tension: "I don’t know if it was a hard foul...Let’s put it like this: He didn’t intend to hurt Rondo. I don’t honestly believe that 99 percent of cases in our league that the player ever intends to hurt anybody but he did. It just happens."
Notwithstanding Doc, watch what happens when Wade goes to hole tonight.
This series is about to get a lot more physical.
Tuesday, April 5, 2011
The Earth is Flat, Fairfield Edition
Princeton's head basketball coach, Sydney Johnson, has left to take a similar position at Fairfield University.
And a Tiger Nation wonders why.
Time for an adult conversation.
Here's one reality: Sydney did a great job with a difficult hand. He turned a 6-23 team into one that won the Ivy title and took a Final Four team (Kentucky) to the last two seconds. He did it with class and made everyone associated with the team feel good about how he did it.
He also did it faster than the much-more-publicized Tommy Amaker did at Harvard (they both started four years ago) despite Harvard's stronger commitment -- both financially and with admissions, um, "flexibility".
So Tiger Nation can fairly be disappointed.
Here's the second reality: Sydney's chosen profession is coaching.
Princeton's basketball coach is normally paid (at somewhere in the low-to-mid $200s as widely reported) -- if he does his job correctly, and performs in accordance with historic norms -- below "market." And the market is moving upscale.
An aside: Yes, Pete Carril stayed at the school for 29 years despite winning multiple titles. But Coach Carril grew up in the 1930s in Bethlehem (PA), at a time when you were happy to have a job(*).
(*-Shades of players, decades later who, in Carril-speak, were "happy to have a uniform.")
But back to the current day. If you have the ability to find eight high-schoolers, convince them to come to your school, and turn them into a winning basketball team, you can make a lot of money.
A lotta lot.
Rick Pitino made $8M last year. 30 of the 68 coaches who took their teams to the NCAA this March earn $1M or more.
(Actually, make that 31: VCU's Shaka Smart just signed for 8 years at $1.2M/year.)
And the velocity at the top is increasing. Back to Carril: in the 1980s, the then-Kentucky coach (Joe B. Hall) probably made $750K, or 4x or 5x as much as the Princeton basketball coach.
In 2007 (the year Sydney started at Princeton), Kentucky hired Billy Gillispie for $2.3M per year. 10x.
Current Kentucky Coach John Calipari makes close to $5M per year. 25x.
And even beyond the dollars that the schools pay, the current "cult of personality"(*) that surrounds big-time college coaches provides plenty of other opportunities, from summer camp lectures to corporate retreats.
(*-A small point on this: the raised "NCAA custom court"(**) for the Final Four has resulted in even more (marginal) focus on the coaches. They are elevated above the rest of their bench, their coaching staff, even the official scorer. And since almost no single athlete plays all 40 minutes, they have literally the longest-running role on "center stage.")
(**-Not to get off on a tangent, but one does wonder: what does the "custom court" have to do with the NCAA's academic mission? And how much does it cost? Oh, and by the way, the NCAA owns at least 13 of them (8 opening round sites (mens) + 4 (womens regionals only) + the one in Dayton.)
See: John Thompson III, who left Princeton in 2004, is paid $1.8M/year and is featured in a national television commercial alongside Magic Johnson.
Meanwhile, and most relevantly for this discussion, it's clear that the dollars at the top of the pay scale are trickling down. The "mid-majors" -- George Mason, VCU, Butler, Richmond (with FoAP Chris Mooney) -- are willing to invest in their quality coaches(*), and give them long-term security (6 years for GMU's Larranaga, 8 years for Smart, 10 years for each of the other two).
(*-Whether this money is being found inside the athletic budget, or via outside (ie., special-purpose fundraising), and if the latter, how the schools' development offices feel about it, is an interesting question.)
It's not Rick Pitino money, but it's still a good living, and with more job security (i.e., a longer-term contract) than at some of the "BCS Schools."(*) That's what has changed in the past decade. As noted earlier with regard to Jeff Capel, the patience at the BCS schools is shorter.
(*-And unlike the Ivies, the Mid Majors offer the simplicity of offering athletic scholarships rather than hoping on the Princeton, say, Admissions Office for (i) an admit; and (ii) a financial aid package.)
We don't think of Fairfield as having a great recent basketball tradition, but frankly, who thought about Butler's tradition before last year? Or VCU's before last week?
Fairfield, by all accounts, was willing to invest in Sydney (query whether or not Fairfield can afford its investment, given its basketball revenue, but that's a problem for another day).
Indeed, by inking Johnson, Fairfield has raised its basketball visibility. Oh, and by the way, they are still in a major media market, and one that will be undoubtedly thinking -- and reporting -- more about the Stags (and probably the rest of the MAAC(*) as well.)
(*-Indeed, with its core Jesuit institutions -- and local, traditional rivalries -- the MAAC is starting to look more-and-more like the old Big East did when it was started in the late 1970s.)
And while at Princeton, Johnson was "just another" representative of the school, he's likely to be The Face of Fairfield(*) - the school, not just the basketball team.
(*-Johnson's photo is currently on the front-page of Fairfield's website, above the "fold". One doubts that the new Princeton coach -- whomever he is -- will get the same attention.)
(Quick quiz: Name the most prominent Fairfield alum.)
(Answer: Probably, Buddy Cianci.)
And he's likely to have a direct line into the President's office. Rev. Jeffrey von Arx, S.J. is a 1969 Princeton alum.
As the NCAA basketball world is now "flat" (in Seth Davis' words -- sort of), it's a reasonable -- if not expected -- move. (Davis' point is that, in a one-and-done era, the gap between BCS-elite teams fielding frosh and sophs and a mid-major built around veterans has shrunk. On four different occasions in the last six Final Fours, Mid Majors have appeared (GMU (2006), Butler (2010 & 2011) and VCU (2011).))
Realistically, the foreseeable NCAA ceiling on the Ivy League is probably the Sweet Sixteen, which Cornell reached last year, not the Final Four or even the Round of Eight. In the 31 years since Penn went to the Bird-Magic Final Four, only 7 Ivy teams have won a single game in the tournament. Only the aforementioned Cornell team won in the Round of 32.(*)
(*-The 1983 Princeton team won two games, but the first game was a "Preliminary"/Play-in, hence they did not reach the Sixteen.)
In the last ten years, the MAAC has won four NCAA first round games(*), although it has not sent a team to the Sixteen in its history (begun in 1983-4). (By the way, Sydney's inheriting a team that was 25-8 and has 4 starters returning.)
(*-Niagra also won a play-in game in 2007, but was blitzed by #1-Kansas in the First Round.)
And while Princeton may seem like a great place to live and raise a family, there are any number of residents -- many of whom work on Wall Street -- who seem to find Fairfield County perfectly acceptable.
Is Princeton-to-Fairfield a move that we expect?
No, but in this world-is-flat time in college basketball, we shouldn't really be surprised.
And a Tiger Nation wonders why.
Time for an adult conversation.
Here's one reality: Sydney did a great job with a difficult hand. He turned a 6-23 team into one that won the Ivy title and took a Final Four team (Kentucky) to the last two seconds. He did it with class and made everyone associated with the team feel good about how he did it.
He also did it faster than the much-more-publicized Tommy Amaker did at Harvard (they both started four years ago) despite Harvard's stronger commitment -- both financially and with admissions, um, "flexibility".
So Tiger Nation can fairly be disappointed.
Here's the second reality: Sydney's chosen profession is coaching.
Princeton's basketball coach is normally paid (at somewhere in the low-to-mid $200s as widely reported) -- if he does his job correctly, and performs in accordance with historic norms -- below "market." And the market is moving upscale.
An aside: Yes, Pete Carril stayed at the school for 29 years despite winning multiple titles. But Coach Carril grew up in the 1930s in Bethlehem (PA), at a time when you were happy to have a job(*).
(*-Shades of players, decades later who, in Carril-speak, were "happy to have a uniform.")
But back to the current day. If you have the ability to find eight high-schoolers, convince them to come to your school, and turn them into a winning basketball team, you can make a lot of money.
A lotta lot.
Rick Pitino made $8M last year. 30 of the 68 coaches who took their teams to the NCAA this March earn $1M or more.
(Actually, make that 31: VCU's Shaka Smart just signed for 8 years at $1.2M/year.)
And the velocity at the top is increasing. Back to Carril: in the 1980s, the then-Kentucky coach (Joe B. Hall) probably made $750K, or 4x or 5x as much as the Princeton basketball coach.
In 2007 (the year Sydney started at Princeton), Kentucky hired Billy Gillispie for $2.3M per year. 10x.
Current Kentucky Coach John Calipari makes close to $5M per year. 25x.
And even beyond the dollars that the schools pay, the current "cult of personality"(*) that surrounds big-time college coaches provides plenty of other opportunities, from summer camp lectures to corporate retreats.
(*-A small point on this: the raised "NCAA custom court"(**) for the Final Four has resulted in even more (marginal) focus on the coaches. They are elevated above the rest of their bench, their coaching staff, even the official scorer. And since almost no single athlete plays all 40 minutes, they have literally the longest-running role on "center stage.")
(**-Not to get off on a tangent, but one does wonder: what does the "custom court" have to do with the NCAA's academic mission? And how much does it cost? Oh, and by the way, the NCAA owns at least 13 of them (8 opening round sites (mens) + 4 (womens regionals only) + the one in Dayton.)
See: John Thompson III, who left Princeton in 2004, is paid $1.8M/year and is featured in a national television commercial alongside Magic Johnson.
Meanwhile, and most relevantly for this discussion, it's clear that the dollars at the top of the pay scale are trickling down. The "mid-majors" -- George Mason, VCU, Butler, Richmond (with FoAP Chris Mooney) -- are willing to invest in their quality coaches(*), and give them long-term security (6 years for GMU's Larranaga, 8 years for Smart, 10 years for each of the other two).
(*-Whether this money is being found inside the athletic budget, or via outside (ie., special-purpose fundraising), and if the latter, how the schools' development offices feel about it, is an interesting question.)
It's not Rick Pitino money, but it's still a good living, and with more job security (i.e., a longer-term contract) than at some of the "BCS Schools."(*) That's what has changed in the past decade. As noted earlier with regard to Jeff Capel, the patience at the BCS schools is shorter.
(*-And unlike the Ivies, the Mid Majors offer the simplicity of offering athletic scholarships rather than hoping on the Princeton, say, Admissions Office for (i) an admit; and (ii) a financial aid package.)
We don't think of Fairfield as having a great recent basketball tradition, but frankly, who thought about Butler's tradition before last year? Or VCU's before last week?
Fairfield, by all accounts, was willing to invest in Sydney (query whether or not Fairfield can afford its investment, given its basketball revenue, but that's a problem for another day).
Indeed, by inking Johnson, Fairfield has raised its basketball visibility. Oh, and by the way, they are still in a major media market, and one that will be undoubtedly thinking -- and reporting -- more about the Stags (and probably the rest of the MAAC(*) as well.)
(*-Indeed, with its core Jesuit institutions -- and local, traditional rivalries -- the MAAC is starting to look more-and-more like the old Big East did when it was started in the late 1970s.)
And while at Princeton, Johnson was "just another" representative of the school, he's likely to be The Face of Fairfield(*) - the school, not just the basketball team.
(*-Johnson's photo is currently on the front-page of Fairfield's website, above the "fold". One doubts that the new Princeton coach -- whomever he is -- will get the same attention.)
(Quick quiz: Name the most prominent Fairfield alum.)
(Answer: Probably, Buddy Cianci.)
And he's likely to have a direct line into the President's office. Rev. Jeffrey von Arx, S.J. is a 1969 Princeton alum.
As the NCAA basketball world is now "flat" (in Seth Davis' words -- sort of), it's a reasonable -- if not expected -- move. (Davis' point is that, in a one-and-done era, the gap between BCS-elite teams fielding frosh and sophs and a mid-major built around veterans has shrunk. On four different occasions in the last six Final Fours, Mid Majors have appeared (GMU (2006), Butler (2010 & 2011) and VCU (2011).))
Realistically, the foreseeable NCAA ceiling on the Ivy League is probably the Sweet Sixteen, which Cornell reached last year, not the Final Four or even the Round of Eight. In the 31 years since Penn went to the Bird-Magic Final Four, only 7 Ivy teams have won a single game in the tournament. Only the aforementioned Cornell team won in the Round of 32.(*)
(*-The 1983 Princeton team won two games, but the first game was a "Preliminary"/Play-in, hence they did not reach the Sixteen.)
In the last ten years, the MAAC has won four NCAA first round games(*), although it has not sent a team to the Sixteen in its history (begun in 1983-4). (By the way, Sydney's inheriting a team that was 25-8 and has 4 starters returning.)
(*-Niagra also won a play-in game in 2007, but was blitzed by #1-Kansas in the First Round.)
And while Princeton may seem like a great place to live and raise a family, there are any number of residents -- many of whom work on Wall Street -- who seem to find Fairfield County perfectly acceptable.
Is Princeton-to-Fairfield a move that we expect?
No, but in this world-is-flat time in college basketball, we shouldn't really be surprised.
Monday, April 4, 2011
#NCAAChamp "Tweets" (on Facebook)
10:05 #NCAAChamp. Matt Howard and Mack do 15 small things each game to help BU win...
9:47 #NCAAChamp This game to be played in the 40s?!?!?
9:42 #NCAAchamp. Offensive rebounds killing Butler late first half
9:35 #NCAAchamp. Butler doubling the high ball-screen, not help-and-recover. New look for Butler ( andUConn?)
9:15 #NCAAChamp. We'll know early. If Butler's defensive physicality can handle UConn's speed, then the Bulldogs have a good chance. And that means -- unlike most underdogs -- Butler wants the refs to "let them play"
9:47 #NCAAChamp This game to be played in the 40s?!?!?
9:42 #NCAAchamp. Offensive rebounds killing Butler late first half
9:35 #NCAAchamp. Butler doubling the high ball-screen, not help-and-recover. New look for Butler ( andUConn?)
9:15 #NCAAChamp. We'll know early. If Butler's defensive physicality can handle UConn's speed, then the Bulldogs have a good chance. And that means -- unlike most underdogs -- Butler wants the refs to "let them play"
Thoughts on Championship Monday
A few "mind droppings" on the eve of the NCAA Championship:
* Over/under. If you had surveyed the thousands in Indy a year ago, and told them one of these two teams (Duke or Butler) would be back in the Final a year later, how many would have guessed the Bulldogs?
And what if I told you that Gordon Hayward -- Butler's best player and a Top-10 NBA pick -- was going to leave early? What would you say then?
* Hayward. Speaking of Hayward, what thoughts are going through his mind tonight -- as the 36-41 Jazz -- winding down a lost season -- prepare to play a meaningless game against the Lakers tomorrow?
Surely he's rooting for his former teammates, and might even be in Reliant Stadium tonight. But he's averaging 4.5 points per game (only 15.5 minutes per night) for a non-playoff bound team. How much would he pay to be back on the floor for "one shining moment"?
And by how many would the Bulldogs -- underdogs by 3.5 as of game time -- be favored if Hayward could suit up?
* The shadow of Jeff Capel. Shaka Smart's decision to stay at VCU is the latest in a series of decisions for mid-major coaches to remain at their (comfortable, and grateful) mid-major schools. In the last 12 months, we've seen Brad Stevens (Butler) and FoAP Chris Mooney (Richmond) chose to stay home, rather than make the jump to "high-major."
Perhaps the easiest way to explain this is by pointing to Jeff Capel. In 2006, Capel was the "hottest mid-major" coach. Coming out of Duke, he jumped to Oklahoma and proceeded -- in his third year -- to take a Blake Griffin-led Sooners team to the Elite Eight. Two years later -- despite a 96-69 record -- it's over. Thanks for the memories.
Yes, the high major life is "The Life."
But you had best win. And win now.
* Over/under. If you had surveyed the thousands in Indy a year ago, and told them one of these two teams (Duke or Butler) would be back in the Final a year later, how many would have guessed the Bulldogs?
And what if I told you that Gordon Hayward -- Butler's best player and a Top-10 NBA pick -- was going to leave early? What would you say then?
* Hayward. Speaking of Hayward, what thoughts are going through his mind tonight -- as the 36-41 Jazz -- winding down a lost season -- prepare to play a meaningless game against the Lakers tomorrow?
Surely he's rooting for his former teammates, and might even be in Reliant Stadium tonight. But he's averaging 4.5 points per game (only 15.5 minutes per night) for a non-playoff bound team. How much would he pay to be back on the floor for "one shining moment"?
And by how many would the Bulldogs -- underdogs by 3.5 as of game time -- be favored if Hayward could suit up?
* The shadow of Jeff Capel. Shaka Smart's decision to stay at VCU is the latest in a series of decisions for mid-major coaches to remain at their (comfortable, and grateful) mid-major schools. In the last 12 months, we've seen Brad Stevens (Butler) and FoAP Chris Mooney (Richmond) chose to stay home, rather than make the jump to "high-major."
Perhaps the easiest way to explain this is by pointing to Jeff Capel. In 2006, Capel was the "hottest mid-major" coach. Coming out of Duke, he jumped to Oklahoma and proceeded -- in his third year -- to take a Blake Griffin-led Sooners team to the Elite Eight. Two years later -- despite a 96-69 record -- it's over. Thanks for the memories.
Yes, the high major life is "The Life."
But you had best win. And win now.
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