"Any fool can make a rule" Henry David Thoreau (1817-1862)
Steve Alford's escape from his ten year contract with the U.N.M. Lobos for coaching at U.C.L.A. pushed most of the news of the legislature, Syria and Sequester off the front page of the Journal. The new coach "Noodles" Neal is on board and all is well. Although Alford's final contract was apparently not yet signed, U.N.M. is demanding the $1,000,000 buyout. Whether that will be paid is uncertain and, by custom or contract, U.C.L.A. will pay it. You may say: "tough, no final signed contract". But in New Mexico, as we will see in the later discussion of "at will" employment contracts, the New Mexico courts have effectively neutered the old English doctrine of "Statute of Frauds". Under that doctrine written contracts could not be changed by oral testimony and written contracts were accorded special significance over mere oral promises. Therefore, U.C.L.A. attorneys might caution their senior athletic department management about the dangers of Mr. Alford's chance in a N.M. court--especially with an Albuquerque Jury.
This leads us to the "at will" employment doctrine in N.M. On March 28 the New Mexico Bankers Association held its annual Human Resources seminar. Senior bank management should talk to any HR person who attended because the seminar hit all the hot buttons of HR in New Mexico.
Dr. J.R. Damron, a member of the State Health Insurance Alliance Board, and Dr. Martin Hickey, CEO of New Mexico Health Connections, discussed the impact of the Affordable Care Act, the "Exchanges" and insurance. One word summary, it may get expensive to insure employees.
I spoke on the regulatory issues in hiring, a notably boring subject. Followed by John Hancock, C.P.A., on recent trends in executive compensation and by Stan Kotosvky of the Tinnin Law Firm on recent developments in employment law.
Bob Tinnin, of Tinnin Law Firm spoke about the National Labor Relations Board's ("NLRB") legal counsel's recent focus on social media and businesses' social media policies. Even though a business may not be unionized or even in danger of union organizing, the National Labor Relations Act ("NLRA")protects any employee activity to improve wages, working conditions, etc. Tinnin is one of the few attorneys in New Mexico with experience in the NLRA and defending against union organizational activities.
The concern about the NLRB's legal counsel's focus on social media and social media policies was not new. This Blog mentioned it sometime ago, although it has become a bigger issue. However, Tinnin's shocker to the HR crowd was that two NLRB adminstrative law judges had ruled that forcing employees to sign acknowledgments of "at will" employment statements violated the NLRA guarantees of employees' rights to improve wages, etc. Tinnin notes that these two decisions ( involving the Arizona Red Cross and Hyatt Hotels) are the decision of administrative law judges and not of the Board, and therefore do not have the force of law. Nonetheless, he notes that this trend, coupled with the growing weakness of the "at will" doctrine in N.M. courts should warn banks and business not to rely on the "at will" doctrine in employment manuals or contracts as a complete defense to employee terminations. Aside from the NLRB developments, the N.M. courts, as mentioned earlier, are not bound strictly by what the parties have apparently agreed in writing--oral promises and statements may make the "at will" doctrine inoperable. Tinnin who is the author of the New Mexico Employment Law Letter, has offered to share the New Mexico Employment Law Letter edition explaining the developing NLRB counsel position and the "at will" doctrine with those who wish copies. Contact him at rtinnin@tinninlawfirm.com.
Life does get hard for business doesn't it?
Do Good.
Marshall G. Martin
Comeau, Maldegen, Templeman & Indall, LLP
505-982-4611 Office
505-228-8506 Cell
