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Howard Kurman Offers Legal Guidance to Employers in His AHA! Business Radio Interview- Part 2

Click here for Part 1 Howard KurmanEvery Tuesday from 6–7pm, Baltimore’s CBS Sports Radio airs AHA! Business Radio, a show produced by Allan Hirsh Advisors. Hosted by the eponymous Allan Hirsh, AHA! Business Radio offers expert advice to business leaders and features interviews with visionary regional executives, founders, entrepreneurs, innovators, and changemakers. The show’s January 26, 2016 broadcast was a conversation with none other than Offit Kurman co-founder Howard Kurman. As former chair of the firm’s employment law practice group, Mr. Kurman not only knows what it takes to successfully build and grow a business, but has spent his career representing, advising, and negotiating on behalf of employers large and small. Over the course of an hour, Mr. Kurman and Mr. Hirsh discussed topics such as unions, the EEOC, social media, and other recent trends and legal developments that employers should be aware of. If you missed the episode or would like to read the transcript, we are pleased to present Howard’s interview, in six parts. This interview has been edited and condensed for clarity. ALLAN HIRSH: When you were mentioning the quickie election rules, you said something that hit home to me. I need to, I guess, confess a little bit to the audience out there: one of my daughters and her husband are involved in labor unions—so one’s a political director and one works for the Family Working Party, my other works for businesses in the Chamber of Commerce, one of the local Chamber of Commerce—so I do have a conflict here, but I get it from both ends. [Laughs] Yeah, you sure do. It’s very interesting, but one of things you said, which really interests me, is that if you think or worry about unions as a business owner, you have to be proactive to provide the kinds of employment opportunities, and I guess it really benefits in programs to keep the union out. That’s correct, because generally what happens is if an employer has internal problems and grievances, which go unanswered or unresolved, those are the most likely employers that you’re going to face in a union campaign, because there is a motivation on the part of the employees to seek help elsewhere. Therefore, it behooves most employers to make sure that they resolve grievances and internal complaints as responsibly and as quickly as they can, to train their managers and supervisors well in dealing with employee issues, and to make sure that those managers and supervisors can recognize when there are issues that need to be brought to the attention of higher management. Communication is the key and those employers that don’t internally communicate with their management staff are often those employers that face successful union campaigns. To me, for issues like sick leave, benefits, vacation time, and competitive hourly wages, it seems like taking care and finding ways to treat employees as if they’re part of a family creates an atmosphere where unions aren’t going to develop. I think that’s correct Allan. I’ ve often had a saying in my career: those employers that are unionized deserve to be unionized. To your point, I think those employers that have advanced or at least progressive policies when it comes to vacation, sick time, creating a culture of appreciation for their employees. have a much better chance of avoiding any kind of unionization campaign because there’s not really the appeal that an outside third party would have for those employees. Remember: the unions are businesses too, and they charge union dues to employees. So, employees are not very receptive to the idea of having money taken out of their checks to pay union dues. If employers are proactive and if they establish a culture of appreciation and progressiveness when it comes to dealing with their employees, those employers usually should be successful in defeating a union campaign. This speeding up of union elections, in a sense, gives a reason for businesses to be proactive and makes it an opportunity, on the other hand, for the unions. As you said, the longer it takes, the more advantage the company has in fighting off an election. In both cases, I actually think it levels the playing field here a little bit and may help both the business and the employer. Well, as a management attorney I would tell you that I think it’s done a little more than level the playing field, but I’ll give you your point about that. In addition to these quickie election changes, there are some other things I’m sure they have been doing, as you say, under the Obama administration in the last nine years. Last week was one more year left in the administration. So, what are some of the other things that the board has been implementing that affect employers? There are a couple of things that I’ll mention fairly quickly, and they affect not only unionized employers but non-unionized employers as well. Most people not familiar with the National Labor Relations Act have this view that it not only affects unionized employees but it affects non-unionized employees as well, so that under Section 7 of the National Labor Relations Act, employees have the right to engage in what’s called “concerted protected activity,” meaning that they can band together and either group together to talk about or to act in concert in order to better their terms and conditions of employment. What the labor board has done is to concentrate, in my opinion, inordinately—really in the last year or two—on those activities that nonunion employers have in common with their union employers. I’ll give you a couple of examples. Today, we know that we live in an age of social media. We live in an age when employees comment quite vociferously many times about their employers on Facebook, Twitter, text messages, and so on. One would think that an employer could pretty much in its discretion discipline an employee who criticizes that employer on Twitter or Facebook or in a text message. The fact of the matter is that, under the law, if that employee is acting in concert with other employees—so if an employee writes something which is degrading or criticizing his employer on Facebook, if that employee’s comments are liked by another employee—that would constitute concerted activity under Section 7 of the National Labor Relations Act, and would give them protection under many situations where, in the past an employer could, in its discretion, simply terminate that employee. That’s under the guise of concerted protected activity. Another thing has to do with confidentiality requirements and restrictions. Most employers would say, “I don’t want my employees talking about what they make in terms of wages. That salary information should be confidential.” The problem with that is, again, under Section 7 of the National Labor Relations Act, employees have the right to engage in protected activity if they are acting in concert with one another. It would be illegal according to the National Labor Relations Board for an employer to have, let’s say, in its handbook a provision that would prohibit the employees from discussing or disclosing confidential information, which would bear on, let’s say, their salary information or what they make on a weekly basis or overtime, because that would be so-called “protected concerted activity,” and employers have gotten into trouble by maintaining those kinds of provisions in their handbook. Between social media rules, confidentiality rules—and there’s a third area, which is investigation: investigations that are undertaken by employers. Let’s say, an employer is investigating some workplace misconduct of employees, and instructs employees who are participating in this investigation not to reveal to any other employee the results of that investigation or what he or she has said during the course of that investigation. That alone would be violative of Section 7 of the National Labor Relations Act, because the National Labor Relations Board would say that you can’t prohibit or try and restrict an employee who may want to talk to other employees about terms and conditions of employment, which obviously a workplace investigation would be. So, there are multitude of areas where you would think an employer has legitimate interest.


Offit Kurman is one of the fastest-growing, full-service law firms in the Mid-Atlantic region. With 120 attorneys offering a comprehensive range of services in virtually every legal category, the firm is well positioned to meet the needs of dynamic businesses and the people who own and operate them. Our eight offices serve individual and corporate clients in the Maryland, Delaware, New Jersey, and Northern Virginia markets, as well as the Washington DC, Baltimore, Philadelphia, and New York City metropolitan areas. At Offit Kurman, we are our clients’ most trusted legal advisors, professionals who help maximize and protect business value and personal wealth. In every interaction, we consistently maintain our clients’ confidence by remaining focused on furthering their objectives and achieving their goals in an efficient manner. Trust, knowledge, confidence—in a partner, that’s perfect. You can connect with Offit Kurman via our BlogFacebookTwitterGoogle+YouTube, and LinkedIn pages.  You can also sign up to received Law Matters, Offit Kurman’s monthly newsletter covering a diverse selection of legal and corporate thought leadership content.