Those of you who read this Blog are aware that I am not a fan of Social Media. I recognize its role in the Arabian Spring, but recent developments in the National Labor Relations Board 's ("NLRB") treatment of employees' use of Facebook should be reviewed by your HR management.
Two recent actions of the NLRB raise red flags about how you deal with employee Facebook postings about your bank. Recently the NLRB settled a complaint that an employer violated federal labor law by firing an employee who criticized her manager on Facebook.The NLRB has just filed charges against a non-profit providing services to low income persons. The non-profit had discharged several employees who joined in a free wheeling Facebook chat about staffing, work performance and working conditions.
The NLRB alleges that the employer violated the employee "concerted activity" protections of Section 7 of the National Labor Relations Act.
It is important to note that the non-profit was not unionized. Union activiity is not required for Section 7 protection--although that is the historical genesis of the protection. The National Labor Relations Act protects any employee conversations with other employees about their terms and conditions of employment. That means in the eyes of the NLRB an employer cannot discipline an employee who posts Facebook complaints about supervisors or wages or working conditions without risking the NLRB pursuing an action.
In an interview with the State's leading labor lawyer with 40 years of dealing with the NLRB and unions, Robert Tinnin of Albuquerque observed that this area is a "hot topic" among labor lawyers. He observed that these cases are " an indication of how anxious the current General Counsel of the Board is to push the administration's agenda of expanding employee rights." When asked about the use of well drafted policies (many of which can be taken off the Internet), he responded with some skepticism, "the NLRB General Counsel now takes the position that policies which interfere with employees discussing matters relating to wages, hours and other terms and conditions of employment, are protected activity under the Act. For some time now, the Board has held that policies requiring employees to maintain confidentiality of their compensation and not to discuss such matters with others even within the organization are illegal,. The General Counsel views these social media policies in the same vein." Tinnin observed that traditionally there has been a balancing act between discussion of protected activities and employee disloyalty. That appears to be gone.
If you employee activity on Facebook or Twitter in which employees are critical of management or of job conditions your HR department should proceed carefully and seek legal advice.
This is a continuing saga. Banks and bank lawyers will be looking to the labor law gurus to draft policies on social media (in this area of protected social media) which might work. This will be tough under the current NLRB view. I note that nothing in this NLRB focus affects the employer's policies on protection of confidential information or GLBA protected information.
I will keep you advised.
Marshall G. Martin
Comeau, Maldegen, Templeman and Indall
505 983 4611
P.S. On May 26 the NLRB announced another Facebook case, involving a BMW dealership who fired several salesmen for complaining about bad presentations at showrooms and the conditions effect on their sales (which are commission based). Sounds like someone is trying to make a point.
Thursday, May 26, 2011
Saturday, May 7, 2011
The Hunt for a New Banking Boss
William Verant, who had been director of the New Mexico Financial Services Division ("FID") for a span which included the terms of two governors was terminated shortly after Governor Martinez assumed office and had her team in place. Now the hunt for his successor is on. The process provides an opportunity to explore the job of director and what challenges the new director may face. But first, the process needs some explanation.
The FID is not an independent department of government. It is one division of Department of Regulation and Licensing ("RLD"). RLD is nightmare of governmental organization. Aside from FID it has jurisdiction over alcohol and gaming, construction industries, manufactured housing, the securities division and 33 boards and commissions (which range from accountancy to such arcane pursuits as thanatopractice, "hoisting", naprapathy and even athletic trainers and barbers).
The newly appointed head of RLD is Dee Dennis. Dee Dennis is a very successful businessman and entrepreneur from Albuquerque. He has a wide and engaging grin and is quick to laugh. However, Dee Dennis is a no-nonsense person. who does not suffer fools. His close friends have said that he is not the type of person who usually thrives in the murk of Santa Fe politics--"he calls them as he sees them". (In the interest of full disclosure I have represented Dee in my past law practice but I have not discussed his search except to respond to one applicant's giving my name as a reference). My information is that he was talked into the job and saw it as a challenge. He got his wish because at the time Verant was terminated, Dennis also found what the press has termed "serious" problems in the securities division.
The hunt for a new banking directors is not quite like the Hunt for Red October, but given lack of job security, relatively low pay and great responsibilities finding the right man or woman will not be easy.
Dee Dennis has proceeded with the hunt in a transparent and methodical way. He has sought names from the banking industry and the banks' trade associations, mortgage groups and others. He has instituted a formal and organized interview process of applicants.Although the process is methodical and expeditious it appears that no hasty decision will be made. John Anderson, Director of the New Mexico Bankers Association,with more than 30 years experience, has commented that he has never seen such an open and honest search for an important official. My prediction--totally without factual basis--is that the selection will be toward the end of May , 2011.
There are more interests involved than just traditional banks.The new director is not only in charge of banks, credit unions, savings and loans (if they exist any longer), small loan companies, mortgage companies, pay-day lenders, trust companies and some other rather disparate groups.
Having introduced you to the world of the next director of FID, what is his or her world likely to look like in the wake of the Dodd-Frank act and the challenges to New Mexico banking, and especially community banks? Here are some thoughts on the impact of Dodd-Frank: For example, the role of the FID in bank examinations and regulatory actions will virtually disappear. Although real impact has almost disappeared now, the state banking departments sometimes have served as a 'behind the scenes " protector for some over zealous federal regulators. This is not likely to continue without a strong director who is not afraid to contest the "feds". Although the rules of the new Consumer Protection provisions of Dodd-Frank are still being drafted, they promise to remove much of local disposition of customer complaints. The almost certain official to run this entity is Elisbeth Warren who is not a friend of banks. In the present FID, bank liaison, Adrian Martinez, has often served the role of an impartial mediator of such issues.e.
Now with that gloomy assessment what should the new director do?
1. He/she should not give up on community banks and champion them with the "feds" and the banking community in the state.
2. She/he should should analyze the current banking statutes and all the other statutes for which the director is responsible. They are old, unworkable, and should be codified into set of coherent rules. Plus, much of the nitty-gritty should be handled by regulations and transparent application of the rules to the situation.
3. The director should have some leeway to publicly disclose problems that involve any industry within his/her
area of responsibility. Although arguably legal under New Mexico lax Pay-Day loan statutes, the director should be able to warn the consumer of foul play.. I hope you will forgive my old style view that Pay Day lenders are not beneficial to our economy . But we should, as bankers, devise a way to meet that need--sorry, I realize that would upset Mr. Bernanke, OCC and Sheila (OTS will be gone)..
I have enjoyed doing this Blog. New Mexico banking faces great challenges but I think we can meet them in our own bumbling way.
Marshall G. Martin
Comeau, Maldegen, Templeman and Indall
505 983 4611
.
The FID is not an independent department of government. It is one division of Department of Regulation and Licensing ("RLD"). RLD is nightmare of governmental organization. Aside from FID it has jurisdiction over alcohol and gaming, construction industries, manufactured housing, the securities division and 33 boards and commissions (which range from accountancy to such arcane pursuits as thanatopractice, "hoisting", naprapathy and even athletic trainers and barbers).
The newly appointed head of RLD is Dee Dennis. Dee Dennis is a very successful businessman and entrepreneur from Albuquerque. He has a wide and engaging grin and is quick to laugh. However, Dee Dennis is a no-nonsense person. who does not suffer fools. His close friends have said that he is not the type of person who usually thrives in the murk of Santa Fe politics--"he calls them as he sees them". (In the interest of full disclosure I have represented Dee in my past law practice but I have not discussed his search except to respond to one applicant's giving my name as a reference). My information is that he was talked into the job and saw it as a challenge. He got his wish because at the time Verant was terminated, Dennis also found what the press has termed "serious" problems in the securities division.
The hunt for a new banking directors is not quite like the Hunt for Red October, but given lack of job security, relatively low pay and great responsibilities finding the right man or woman will not be easy.
Dee Dennis has proceeded with the hunt in a transparent and methodical way. He has sought names from the banking industry and the banks' trade associations, mortgage groups and others. He has instituted a formal and organized interview process of applicants.Although the process is methodical and expeditious it appears that no hasty decision will be made. John Anderson, Director of the New Mexico Bankers Association,with more than 30 years experience, has commented that he has never seen such an open and honest search for an important official. My prediction--totally without factual basis--is that the selection will be toward the end of May , 2011.
There are more interests involved than just traditional banks.The new director is not only in charge of banks, credit unions, savings and loans (if they exist any longer), small loan companies, mortgage companies, pay-day lenders, trust companies and some other rather disparate groups.
Having introduced you to the world of the next director of FID, what is his or her world likely to look like in the wake of the Dodd-Frank act and the challenges to New Mexico banking, and especially community banks? Here are some thoughts on the impact of Dodd-Frank: For example, the role of the FID in bank examinations and regulatory actions will virtually disappear. Although real impact has almost disappeared now, the state banking departments sometimes have served as a 'behind the scenes " protector for some over zealous federal regulators. This is not likely to continue without a strong director who is not afraid to contest the "feds". Although the rules of the new Consumer Protection provisions of Dodd-Frank are still being drafted, they promise to remove much of local disposition of customer complaints. The almost certain official to run this entity is Elisbeth Warren who is not a friend of banks. In the present FID, bank liaison, Adrian Martinez, has often served the role of an impartial mediator of such issues.e.
Now with that gloomy assessment what should the new director do?
1. He/she should not give up on community banks and champion them with the "feds" and the banking community in the state.
2. She/he should should analyze the current banking statutes and all the other statutes for which the director is responsible. They are old, unworkable, and should be codified into set of coherent rules. Plus, much of the nitty-gritty should be handled by regulations and transparent application of the rules to the situation.
3. The director should have some leeway to publicly disclose problems that involve any industry within his/her
area of responsibility. Although arguably legal under New Mexico lax Pay-Day loan statutes, the director should be able to warn the consumer of foul play.. I hope you will forgive my old style view that Pay Day lenders are not beneficial to our economy . But we should, as bankers, devise a way to meet that need--sorry, I realize that would upset Mr. Bernanke, OCC and Sheila (OTS will be gone)..
I have enjoyed doing this Blog. New Mexico banking faces great challenges but I think we can meet them in our own bumbling way.
Marshall G. Martin
Comeau, Maldegen, Templeman and Indall
505 983 4611
.
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