Total Articles: 99
NLRB Offers Additional Guidance on Social Media Issues, Continues to Expand Employee Rights in Social Media Outlets and to Scrutinize Employer Communication Policies
On January 25th, National Labor Relations Board Acting General Counsel Lafe Solomon issued his second report summarizing cases that involve employee activity on social media outlets like Facebook or Twitter. General Counsel Memorandum OM 12-31 follows on the heels of the Acting General Counsel’s August 2011 report and generally summarizes 14 recent and “extremely fact-specific” social media cases reviewed by the Board’s Division of Advice, half of which involved questions about employer social media policies. The remaining cases involved employees who were discharged after they posted comments to Facebook. Unfortunately, the Memorandum does not include any identifying information about the cases, making it difficult to do more than take the summaries at face value. Although the cases reflect the current thinking of the Board’s national and regional level staff, employers should note that the Acting General Counsel selected these cases from the Board’s Division of Advice opinions on whether to issue a complaint, and not from formal Board decisions.
Wash His Mouth Out With Soap!
The National Labor Relations Board under the Obama Administration has been in the news quite a bit lately. It has repeatedly been accused of ignoring past legal precedent in order to favor employees and unions over employers. While the agency has always been one of the most politicized in the federal government, it seems to have really outdone itself in a recent case involving a dealer. You be the judge.
NLRB Issues New Report on Social Media
The National Labor Relations Board's Acting General Counsel issued a new report last week discussing 14 recent social media cases. The Board's social media cases are a hot issue and many of you are following them closely, so I decided to partner up with fellow bloggers, Teresa Thompson and Norah Olson Bluvshtein of netWORKed, to fill you in.
NLRB Issues New Report on Facebook Firings
The National Labor Relations Board’s Acting General Counsel issued a new report last week discussing 14 recent social media cases. We know the Board’s social media cases are a hot issue and that many of you are following them closely, so we decided to partner up with fellow blogger, Rick Ross of Employer Law Update, to fill you in.
NLRB Report Challenges Validity of Many Commonly Used Social Media Policies
In its most recent effort to draw lines on the self-described "hot topic" of the "lawfulness of employers' social media policies and rules," the National Labor Relations Board's (NLRB) Office of General Counsel has taken the position that many policy provisions commonly seen in employers' social media policies violate the National Labor Relations Act (NLRA). This most recent shot across the bow came on January 24, 2011, in the form of a report, issued to senior regional staff, on 14 cases which, according to the General Counsel, "present emerging issues in the context of social media." This report follows a previous General Counsel report, dated August 18, 2011, which discussed 14 prior NLRB cases involving social media issues.
Bans on Buttons and Insignia in Health Care Settings Must be Consistently Enforced, NLRB Advises
Recognizing that health care employers are justifiably concerned with maintaining a safe environment for their patients and residents, the National Labor Relations Board for many years has permitted these employers to maintain and enforce rules banning employees from wearing buttons and insignia in “immediate patient care areas,” including patient rooms, corridors outside those rooms, treatment areas, and patient dining rooms. Indeed, the Board has long held that such bans are “presumptively valid” (proof by the employer of “special circumstances” not required) as necessary to avoid disruption of health-care operations or disturbance of patients and residents. Health care employers have applied these rules to prohibit the wearing of a variety of buttons, including union-related buttons, and even disciplined employees who violate them.
Healthcare Employers May Not Selectively Prohibit Union Insignia in Patient Care Areas
Most hospital visitors have seen them – from nursing school pins to pictures of children, from advanced designations to "special messages" – and most healthcare providers allow them in some form. They are the "accessories" that adorn an employee's identification badge. They can be informative and they can be cute, but, as a new decision from the National Labor Relations Board confirms, they can be problematic if not properly and consistently regulated.
NLRB BANS ATTEMPTS TO RESTRICT CLASS CLAIMS OF NON-UNION EMPLOYEES
Employers suffered yet another setback recently at the National Labor Relations Board (NLRB) when the NLRB announced a ruling striking down most arbitration agreements which contain a so-called class action waiver. The case involved D.R. Horton. As a result of this opinion, employers are no longer permitted to require employees to sign arbitration agreements that prevent employees from joining together to pursue employment-related claims, whether in arbitration or in court.
Non-Union Arbitration Agreement Violates Employee Rights, NLRB Says
In the first week of the new year, a two-member panel of the National Labor Relations Board, in D.R. Horton, Inc., concluded that mandatory arbitration agreements which required employees individually to waive the right to pursue claims on a class basis interfered with employees' rights to engage in concerted activity under Section 7 of the National Labor Relations Act. The decision is significant for a number of reasons, not the least of which is the fact that the employer was non-union.
NLRB Rules that Class Action Waivers in Mandatory Arbitration Agreements Are Unlawful
In a case involving issues of first impression, the National Labor Relations Board (NLRB) recently held that a mandatory arbitration agreement that waived employees’ rights to participate in class or collective actions was unlawful under the National Labor Relations Act (NLRA). D. R. Horton, Inc., Case 12-CA-25764 (1/3/12; released 1/6/12).
NLRB Limits Use of Employment Class Action Waivers
On January 3, 2012, the National Labor Relations Board (the "NLRB" or the "Board") issued its decision in D.R. Horton and Michael Cuda, finding that notwithstanding the Federal Arbitration Act (the "FAA") and AT&T Mobility v. Concepcion (the United States Supreme Court's April 27, 2011 opinion which we previously reported on), an employer that requires employees as a condition of their employment to sign an agreement that precludes them from filing joint, class or collective claims addressing their wages, hours or other working conditions against the employer in any forum, has engaged in an unfair labor practice under the National Labor Relations Act (the "Act").
Mandatory “No-Class Action” Arbitration Waivers Interfere with Employee Rights, NLRB Rules
Requiring individual employees as a condition of employment to sign arbitration agreements waiving their right to bring joint, class or collective actions, both in arbitration and in the courts, violates federal labor law, the National Labor Relations Board has held. The National Labor Relations Act, the Board said, confers on employees the right to pursue discrimination, wage and hour and other workplace-related claims in a joint, class or collective fashion as “protected concerted activity.”
Arbitration Agreements Barring Class Actions Held Unenforceable By the NLRB
The National Labor Relations Board (NLRB or Board) recently held that employment agreements which contain arbitration provisions cannot bar employees from pursuing class or collective arbitration proceedings. In D.R. Horton, Inc., the NLRB specifically held that the mandatory arbitration of any employment related claims must permit employees to pursue their arbitration claims as a class or collective action.
Legal Alert: Class Action Preclusion and the NLRB
Executive Summary: In a 2-0 decision (with Member Hayes recused), the National Labor Relations Board (NLRB) has held that an employer violates the National Labor Relations Act (NLRA) when it requires employees to sign an agreement that precludes them from filing joint, class, or collective claims regarding wages, hours or other working conditions against the employer in any forum, arbitral or judicial. Comparing the agreement to "yellow dog" contracts,[1] the Board held such an agreement unlawfully restricts employees' exercise of their Section 7 rights to engage in concerted activities for mutual aid or protection. See D.R. Horton, Inc. and Michael Cuda, Case 12–CA-25764 (Jan. 3, 2012).
NLRB Strikes Down Arbitral Class Action Waiver
In D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 3, 2012), the National Labor Relations Board, by a 2-0 vote, found that an arbitration agreement requiring "as a condition of employment" all employees to agree to waive the right to bring class or collective actions in any forum violated Section 8(a)(1) of the National Labor Relations Act (NLRA), which guarantees the rights of employees to engage in concerted, protected activity. The decision was issued by Board Chairman Mark Pearce and Member Craig Becker on January 3, 2012, the final day of Member Becker's controversial recess appointment. Republican Board Member Brian Hayes was recused and did not participate in deciding the merits of the case. The decision has potentially wide-ranging implications for employers who have required employees to agree to arbitrate their disputes and at the same time waive the right to pursue their claims on a class or collective basis. The decision, however, also leaves open the possibility that agreements that are not "imposed" on employees may yet be enforceable, even if those agreements ban class or collective actions in any forum.
NLRB Invalidates Mandatory Employee Class Waivers in Arbitration Agreements
Last week, in a decision with broad implications, the NLRB struck down a common feature in mandatory employee arbitration agreements. In D.R. Horton, Inc., the Board held that employers cannot require employees to sign arbitration agreements that waive class or collective claims in arbitration. In other words, employers cannot require employees to assert all arbitral claims on an individual basis. The NLRB's holding potentially contradicts a recent U.S. Supreme Court decision, which upheld class waivers in arbitration agreements. The NLRB distinguished the Supreme Court's recent holding on the basis that it did not address employment claims specifically.
NLRB Decision Attacks Class and Collective Action Waivers in Mandatory Arbitration Agreements
In a far-reaching decision issued on Friday, January 6, 2012, two members of the National Labor Relations Board (NLRB) ruled it is a violation of federal labor law for employers to require employees to sign mandatory arbitration agreements that do not allow for employees to bring class or collective claims before an arbitrator or court.
Ohio Federal Court Exterminates Union's Request to Permit Inflatable Rat on University Green Space
The U.S. District Court for the Southern District of Ohio recently denied a union’s request for a temporary restraining order (TRO) seeking to enjoin the Miami University Police Department from prohibiting the display of a large inflatable rat as a part of the union’s protest of a construction company performing renovations to a campus building. Laborers’ International Union of North Am., Local 534 v. Hodge, Case No. 1:11cv569, 2011 U.S. Dist. LEXIS 132883 (S.D. Ohio Nov. 17, 2011).
MORE ON SOCIAL MEDIA AND EMPLOYMENT LAW
With the emergence of an active National Labor Relations Board (“NLRB”), non-union employers are learning about the National Labor Relations Act (“NLRA”) the hard way. The NLRB’s keen interest in how employers attempt to regulate employees’ use of “social media,” such as Facebook, Twitter, and related sites creates new challenges for management unfamiliar with the NLRA and its requirements.
NLRB Charge Dismissed – Employee’s LinkedIn “Joke” Falls Flat
The National Labor Relations Board recently dismissed a charge brought by an employee who was fired for a post on LinkedIn. In 2010, a supervisor from the employee’s department invited the employee to join LinkedIn. The invitation identified the company and asked the employee for his job title. Thinking only his supervisor would see his response, the employee “jokingly” wrote that his position was, “f**ktard.”
The NLRB: Sending “Convicts” into Your Customers' Homes
The NLRB’s prosecution of cases involving
employee use of social networking sites has drawn
recent attention, as discussed at length at pages
1–5 of this Newsletter. While social media sites
such as Facebook and Twitter have expanded the
reach of the National Labor Relations Act to the
electronic realm, there are many other areas where
the NLRB continues to aggressively pursue
employers with regard to other aspects of protected,
concerted activity as well. This is refl ected in the
NLRB’s decision in AT&T Connecticut, a decision
issued earlier this year.
A Virtual Minefield: The NLRB and Social Media
Contrary to what some people might think—
especially those who purchase smartphones with
dedicated “status update” buttons—the Declaration
of Independence did not proclaim that among our
unalienable rights is the right to post status updates
on Facebook. However, there are limitations on
what employers can do about employees who post
derogatory messages about the companies for
which they work, or the supervisors to whom they
report. A recent fl urry of activity at the National
Labor Relations Board (NLRB) makes clear that
online communications enjoy the same protections
as any other protected concerted activity, and that
the NLRB is ready and willing to take up the cause
of those employees disciplined because of what
they posted on Facebook or tweeted on Twitter. As
a result, any employer rolling out a social media
policy or issuing discipline in response to a social
media post needs to understand the rules of the
virtual road.
A Picture Is Worth 1,000 Words – And Facebook Ups That Ante
In this issue, we want to alert you to an actual case involving a dealership that was recently decided by one of the National Labor Relations Board's Administrative Law Judges (ALJ). The case illustrates just how important it is for managers to be aware of the law as it continues to develop in this area.
NLRB Opens Useful Escape Hatch for Employers Responding to Obnoxious Social Media Conduct
Selling luxury cars in a down economy can be tough enough without employees mocking a company-sponsored sales event on their Facebook page. An administrative law judge (ALJ) with the National Labor Relations Board (NLRB) issued an opinion last week holding that the National Labor Relations Act (NLRA) protected an employee’s sarcastic post, but nonetheless upheld the dealership’s termination decision because it was based on other, unprotected Facebook content. The decision is an important reminder for employers that when protected and unprotected content appear on the same Facebook wall, the protected content does not shield the employee from discipline based on the unprotected content.
National Labor Relations Board Judge Finds No Violation for a Facebook Posting
A National Labor Relations Board Administrative Law Judge ruled last week that Knauz BMW, a Chicago area car dealership, did not run afoul of the National Labor Relations Act by terminating an employee for his Facebook postings.
Another Facebook Firing Found Lawful by the NLRB.
A National Labor Relations Board Administrative Law Judge ruled last week that Knauz BMW, a Chicago area car dealership, did not run afoul of the National Labor Relations Act by terminating an employee for his Facebook postings.
NLRB ALJ Rules Employer Unlawfully Terminated Non-Union Employees for Comments Made on Facebook
In a case of first impression, an administrative law judge for the National Labor Relations Board (NLRB) concluded that an employer unlawfully terminated five non-union employees for work-related comments they made on Facebook.
NLRB ALJ Rules Employer Unlawfully Terminated Non-Union Employees for Comments Made on Facebook
In a case of first impression, an administrative law judge for the National Labor Relations Board (NLRB) concluded that an employer unlawfully terminated five non-union employees for work-related comments they made on Facebook.
Coming to a Bulletin Board Near You on November 4th, Or Maybe Not...
On planning committees for seminars, one topic that inevitably gets discussed is that we need to cover some traditional labor law. Almost inevitably someone will point out that in Texas, very few employers have unions and so any discussion of the NLRA or the actions of the NLRB will no doubt turn off a large part off the audience. And that of course, always gets the suggestion -- let's emphasize that the NLRA covers "concerted activity" not just union activity.
NLRB Judge Finds Employer Unlawfully Discharged Five Employees For Facebook Postings
I have been waiting to see how a National Labor Relations Board (NLRB) Administrative Law Judge would rule on a pending “Facebook firing” case. We now have the answer – and employers may need to tread cautiously! Because this is a case of first impression, I decided to issue a joint post here with my colleagues Teresa Thompson and Norah Olson Bluvshtein, netWORKed.
Employees’ Facebook Posts Were Protected by NLRA, Says Judge
The NLRB announced the “first case involving Facebook” to have resulted in a decision by an Administrative Law Judge (ALJ). The case, Hispanics United of Buffalo v. Ortiz, held that the employer violated the National Labor Relations Act (NLRB), by terminating five employees for their Facebook posts regarding a coworker’s complaint about their job performance.
NLRB Judge Finds Employer Unlawfully Discharged Five Employees For Facebook Postings
We have long been waiting to see how a National Labor Relations Board (NLRB) Administrative Law Judge would rule on a “Facebook firing” case, and we wrote about this particular case in May – NLRB Continues its Focus on Facebook Firings. We now have the answer – and employers may need to tread cautiously! Because this is a case of first impression, we decided to issue a joint post on the topic with our colleague Rick Ross, who authors the blog Employer Law Update (check him out!)
Not As Bad As We Feared: NLRB Issues Guidance On Social Media
Earlier this year there was deep concern in the employer community because the National Labor Relations Board (NLRB) issued a complaint against an employer who disciplined an employee for highly derogatory comments she made about a supervisor on her Facebook page. Questions about whether an employer had any right to respond to such comments without violating the National Labor Relations Act (NLRA) were rampant.
NLRB Reverses Course, Rules that Unions Cannot File Lawsuits on Behalf of Employees it Seeks to Represent during the Critical Period before Election
Among other rights, Section 7 of the National Labor Relations Act (the Act) protects the rights of employees and unions to engage in litigation, lobbying, or other activities to obtain or enforce rights under the Act, as well as other state and federal wage and hour and employment laws. Section 7 protects a union’s right to file suit on behalf of employees it does not represent, but those rights are not boundless as demonstrated by the Board’s recent decision in Stericycle, Inc.
NLRB Offers Useful Guidance for Employers In Summary Report on Social Media Cases
Social media issues continue to dominate the labor law landscape. Last month, we highlighted three recent memoranda issued by the National Labor Relations Board’s Division of Advice to NLRB regional offices discussing social media under the National Labor Relations Act (NLRA). And, on August 18, 2011, the NLRB’s Office of the General Counsel released its own Memorandum that summarized the most recent social media cases issued by the Board.
NLRB Takes On Social Media Policies
On August 18, 2011, the National Labor Relations Board's (NLRB's) general counsel issued a report detailing the agency's efforts to pursue administrative enforcement actions against employers with overly broad social media policies. The report also details unfair labor practice allegations where employees engaged in protected concerted activities in online social media forums. This topic affects both unionized and union-free employers.
"What Did You Say?" - Social Media And The NLRB
The website Wikipedia defines social media as "media for social interaction, using highly accessible and scalable communication techniques." Key to social media is "the use of web-based and mobile technologies to turn communication into interactive dialogue." Social media has a natural tendency to allow the user to connect with multitudes of users and provide each of those users the ability to instantly respond to both the original author and those undefined multitudes. Social media offers the power to connect and influence in ways never before possible.
NLRB and Facebook Firings: Employer's Worst-Case Scenario
The NLRB's position on "Facebook Firings" (i.e., when an employee is terminated for comments posted on Facebook), remains a hot-button issue for union and non-union employers alike. The Board's General Counsel recently issued three opinions in favor of employers who had been charged with violating the National Labor Relations Act (NLRA) when they terminated or disciplined an employee for social-media activity.
Not all work-related Facebook comments are protected by the NLRA.
Recently, the National Labor Relations Board (NLRB) has increased its focus on social media communications, and especially on those postings that include discussion regarding the terms and conditions of employment. The issues most commonly raised in cases before the NLRB have alleged that: (1) an employer has overbroad policies that restrict employees’ use of social media; or (2) that an employer unlawfully discharged or disciplined one or more employees over contents of social media postings. Based upon the Board’s increased focus on these issues, employers are reviewing and revising existing social media policies in an attempt to fully understand how this area of the law is evolving.
NLRB Signals Retreat on Cases Involving Employee Comments in Social Media
In three recent cases, the National Labor Relations Board (NLRB) has indicated that employee comments about their employment on social media web sites like Facebook may not be protected under federal labor law. These cases signal a retreat from the NLRB’s trend in late 2010 and early 2011 to issue complaints involving employer discipline of employees who posted complaints about their employment online.
Inappropriate Facebook Posts About Clients’ Mental Illness Not Protected Activity
We wrote yesterday about one of the recent Advice Memoranda issued by the National Labor Relations Board on what types of employee Facebook posts will and will not be considered protected concerted activity.
The NLRB Approves Facebook Firings
Does the NLRA prohibit an employer from terminating an employee for the employee's negative comments made about his or her job and posted on Facebook?
NLRB Targets “Facebook Firings” and Social Media Policies
The National Labor Relations Board (NLRB), the agency that recently filed an unfair labor practice complaint against Boeing Co. for deciding to build 787 Dreamliners in South Carolina,has also drawn attention for prosecuting complaints against employers that took action against employees for negative Facebook posts.
The NLRB is Making Clear Its Position Regarding Social Media Communications
The National Labor Relations Board (NLRB) has issued another complaint (and accompanying press release) alleging unlawful termination of an employee for posting photos and comments on Facebook. http://www.nlrb.gov/news/chicago-car-dealership-wrongfully-discharged-employee-facebook-posts-complaint-alleges The complaint, which is similar to other complaints filed by the NLRB in the past months, alleges that a Chicago area BMW dealership illegally fired an employee after that individual posted information critical of the dealership. In case you’ve missed the ever-escalating activity on this issue, here’s a summary:
The NLRB is making clear its position regarding social media communications.
The National Labor Relations Board (NLRB) has issued another complaint (and accompanying press release) alleging unlawful termination of an employee for posting photos and comments on Facebook. The complaint, which is similar to other complaints filed by the NLRB in the past months, alleges that a Chicago area BMW dealership illegally fired an employee after that individual posted information critical of the dealership. In case you’ve missed the ever-escalating activity on this issue, here’s a summary:
NLRB Division of Advice Finds an Employer Lawfully Discharged an Employee for Inappropriate Tweets on Twitter
The Hartford Regional Office of the National Labor Relations Board set the labor world abuzz last fall when it issued a complaint against a Connecticut employer for discharging an employee because of her posts on Facebook. The Board claimed that the employer unlawfully discharged the employee for criticizing her supervisor, because she was exercising her federal labor law rights by discussing the terms and conditions of her employment with her co-workers on Facebook. The Board also claimed that the company’s social media policy was overly broad and unlawful because it prohibited employees from making any disparaging comments when discussing the Company, supervisors and co-workers. The case settled, however, leaving several issues unresolved.
The NLRB Takes Its Internet Battle to a Non-Unionized Workplace
On May 9, 2011, the National Labor Relations Board (NLRB) issued a complaint alleging that Hispanics United, a Buffalo non-profit that provides social services to low-income clients, violated the National Labor Relations Act (NLRA) when it fired five employees after they used Facebook to criticize working conditions. This complaint comes on the heels of two other highly publicized situations in which the NLRB asserted that companies violated employees’ rights by limiting the information that could be posted on social media sites.
Another Day, Another NLRB Complaint Over Facebook Firing
Law360 reports (subscription required), that the Chicago Regional Office of National Labor Relations Board (NLRB) issued a complaint last week against Karl Knauz Motors, Inc., alleging that it violated the National Labor Relations Act (NLRA), when it fired an employee for comments he posted on his Facebook page.
The NLRB takes its Internet battle to a non-unionized workplace.
On May 9, 2011, the National Labor Relations Board (NLRB) issued a complaint alleging that Hispanics United, a Buffalo non-profit that provides social services to low-income clients, violated the National Labor Relations Act (NLRA) when it fired five employees after they used Facebook to criticize working conditions. This complaint comes on the heels of two other highly publicized situations in which the NLRB asserted that companies violated employees’ rights by limiting the information that could be posted on social media sites.
NLRB vs. Social Media: The Battle Continues
The National Labor Relations Board (NLRB) has announced that, on May 9, it issued a complaint against a non-profit for allegedly terminating five employees for comments they made on Facebook. This is the latest development in what appears to be the final frontier of social media and employment law.
NLRB OKs Employee Termination for Twitter Posts
The NLRB's General Counsel's Office has issued an Advice Memorandum in which it finds that an employer did not violate the National Labor Relations Act when it terminated an employee for his tweets critical of his employer. This is an important decision favorable for employers.
NLRB Takes Issue With Employers’ Response to Employee’s Tweet
The National Labor Relations Board (NLRB), has made headlines yet again for its position on employee use of social media. This time, as reported by the New York Times, the NLRB is up in arms over the termination of a New Jersey employee due to a comment she made on Twitter.
Growth and evolution in the law on protected concerted activity
I started my legal career at the National Labor Relations Board, and I tried my first case there in 1981. We were prosecuting a transport company for terminating an employee for engaging in protected concerted activity.
Employee's post-termination blog postings do not preclude reinstatement.
Last month, employers’ attention was focused on the settlement of a matter in which the NLRB originally had announced plans to prosecute a complaint brought by its Connecticut regional office regarding the termination of a union member/employee who had posted negative remarks about her supervisor and her employer on her personal Facebook page.
NLRB v. Social-Media Policies, Round II
First, the NLRB filed a complaint against CT employer American Medical Response (AMR), alleging that, by disciplining an employee for violating its social-media policy, AMR had violated the National Labor Relations Act. The AMR complaint was settled and no decision was issued.
Can You Fire Someone For A Facebook Posting? Facebook Firing Case Ends In Settlement
Social networking has a dark side. Any yahoo with a Facebook page has a platform to maliciously tear down your company. If that yahoo is on your payroll, you should have the right to press “delete” and terminate, right? Maybe not.
NLRB Complaint Based Upon Facebook Posts as “Concerted Activity” is Settled Prior to Hearing
In November 2010, the National Labor Relations Board (NLRB) announced its plans to prosecute a complaint issued by a Connecticut regional office regarding the termination of a union member/employee who posted negative remarks about her supervisor on her personal Facebook page. The complaint alleged that the employer, an ambulance service, maintained and enforced overly broad and restrictive policies regarding blogging and Internet postings outside of work.
NLRB Settles Charge Claiming Employee was Fired for Facebook Post
The National Labor Relations Board (NLRB) has settled an unfair labor practice charge it filed in October 2010 against an ambulance service claiming the company discharged an employee for making disparaging comments about her supervisor on her Facebook page. The Board claimed this violated the employee's right to engage in protected concerted activity under the National Labor Relations Act (NLRA). The Board also claimed the company's social media policy was overly broad and interfered with its employees' right to engage in protected concerted activity.
Settlement of Facebook Charge Leaves Lots of Social-Media Policy Questions
The legal effectiveness of social-media policies in the workplace came under fire when the National Labor Relations Board (NLRB) filed an unfair labor practices complaint against American Medical Response. The complaint was filed after the employer terminated a unionized employee for complaining about her boss via Facebook. The NLRB’s complaint alleged that the employee was engaged in activity protected by the NLRA because she was discussing the terms and conditions of her employment with co-workers.
NLRB complaint based upon Facebook posts as "concerted activity" is settled prior to hearing.
In November 2010, the National Labor Relations Board (NLRB) announced its plans to prosecute a complaint issued by a Connecticut regional office regarding the termination of a union member/employee who posted negative remarks about her supervisor on her personal Facebook page. The complaint alleged that the employer, an ambulance service, maintained and enforced overly broad and restrictive policies regarding blogging and Internet postings outside of work.
A New Twist on “Protected Concerted Activity” Under the NLRA?
The management community’s concerns that a National Labor Relations Board (NLRB) dominated by Democratic appointees would interpret the National Labor Relations Act (NLRA) to broadly expand employee rights under the law were validated by the NLRB’s recent decision in Parexel International, LLC.
NLRB Poised To Rule On Facebook Case
On October 27, the National Labor Relations Board's General Counsel (GC) made national headlines with the issuance of an unfair labor practice complaint against American Medical Response Of Connecticut (AMR) accusing the company of unlawfully discharging an employee for posting critical remarks about her supervisor on her personal Facebook page. The GC's complaint also alleged that AMR maintained unlawful employment policies regulating employee blogging and Internet postings, prohibiting employee conduct of a "generally offensive nature" and on-premises employee solicitation and distribution.
Federal Court Rules Employees Must Behave Civilly While Engaging in Protected Activity
An employee who engages in protected whistleblowing must demonstrate civility and respect for his superiors in voicing [his] concerns, the federal appeals court in Chicago has held in a case brought by a truck driver alleging retaliation in violation of the federal Surface Transportation Assistance Act (STAA). Formella v. U.S. Dept of Labor and Schnidt Cartage, Inc., No. 09-2296 (Dec. 10, 2010). In addition to STAA cases, the Courts decision also may reach cases involving employees who claim to have suffered retaliation for engaging in activities protected by the National Labor Relations Act or federal anti-discrimination law. The Seventh Circuit has jurisdiction over Illinois, Indiana, and Wisconsin.
Facebook Posts May Be "Concerted Activity".
Section 7 of the National Labor Relations Act (NLRA) bars employers from interfering with employees' efforts to work together to improve the terms and conditions of their workplace. The National Labor Relations Board (NLRB) regularly has held that an employer violates Section 7 if its actions would "reasonably tend to chill employees" in the exercise of their rights under the NLRA.
Employers Should Review Their Social Networking Policies.
As we reported in our November 2010 advisory, NLRB Issues Complaint Against Employer for Facebook Termination, the National Labor Relations Board has created significant uncertainty about the permissible scope of an employers social media policy. The Board issued a complaint against an employer who fired an employee for posting negative comments about her supervisor on her Facebook page. Following our advisory, Hughes Hubbard partner Marshall B. Babson, formerly a Member of the NLRB, was quoted in the New York Times for his observation that the Board viewed the employers social networking policy as overbroad. (Steven Greenhouse, Company Accused of Firing Over Facebook Post, N.Y. Times, November 8, 2010.) The law is evolving in this area and clients are increasingly asking us to review their social networking policies to be in the best position to defend against claims that such policies are unlawful.
"Facebook Firing" Is Chock-Full of Concerns For Employers Whether You Have A Union Or Not
The well-publicized controversy over the complaint filed recently against an ambulance service for firing an employee who bad-mouthed her supervisor on her Facebook page should cause concern and be carefully watched by all employers -- including those companies without unions.
NLRB Claims Firing Employee Over Facebook Post is Illegal
While it's not surprising that companies want to prohibit employees from using their social media sites to disparage the employer or disclose confidential business information, the National Labor Relations Board (NLRB) claims overly broad social networking policies violate federal labor law. The Board recently filed an unfair labor practice complaint against an ambulance service, claiming the company discharged an employee for making disparaging comments about her supervisor on her Facebook page, in violation of her right to engage in protected concerted activity. The Board also claims the company's social media policy is overly broad and interferes with the employees' right to engage in protected concerted activity.
Facebook Posts Might be Viewed by NLRB as Concerted Activity
Section 7 of the National Labor Relations Act (NLRA) restricts employers attempts to interfere with employees efforts to work together to improve the terms and conditions of their workplace and employment. The National Labor Relations Board (NLRB) regularly has held that an employers actions violate Section 7 if those actions would reasonably tend to chill employees in the exercise of their rights under the NLRA.
Employers, Dont Despair. Social-Media Policies Are Not Prohibited by the NLRA
The NLRBs recently filed complaint against an employer, in which it alleges that the employers social-media policy violates the National Labor Relations Act, has caused quite a stir in the blogosphere. See, for examples, Jon Hymans post at the Ohio Employers Law Blog, collecting various posts discussing the case. Despite the near hysteria that the American Medical Response Team complaint has caused, the truth is that social-media policies are not doomed, nor are employers who enforce them.
Facebook posts might be viewed by NLRB as "concerted activity"
Section 7 of the National Labor Relations Act (NLRA) restricts employers attempts to interfere with employees efforts to work together to improve the terms and conditions of their workplace and employment. The National Labor Relations Board (NLRB) regularly has held that an employers actions violate Section 7 if those actions would reasonably tend to chill employees in the exercise of their rights under the NLRA.
Facebook Firing: The Labor Board Weighs In
The National Labor Relations Board's General Counsel has issued a complaint against a Connecticut ambulance service alleging that one of its union-represented emergency medical technicians was unlawfully fired after criticizing her supervisor on Facebook. The complaint also alleges, among other things, that the company's blogging and Internet policy "interferes with, restrains, and coerces" employees in the exercise of their rights under the National Labor Relations Act. An administrative law judge is scheduled to hear the complaint in January.
Union and Non-Union Employers Take Note: The NLRB Has Your Social Media Policy In Its Crosshairs
Recently, in what has been described as a ground-breaking case, the Hartford Regional Office of the National Labor Relations Board issued an unfair labor practice complaint against a Connecticut employer because, according to the Board, the company maintains an overly broad social media policy that interferes with employees rights guaranteed by Section 7 of the National Labor Relations Act.
NLRB Complaint Raises Concerns Over the Application of Social Media Policies
On November 2, 2010, the National Labor Relations Board ("NLRB") announced that its Hartford Regional Office had filed a complaint against American Medical Response of Connecticut, Inc. ("AMR"). The complaint alleges that AMR violated Section 7 of the NLRA by terminating an employee for posting negative comments about her supervisor on her Facebook account. The complaint also alleges that AMR maintained and enforced overly broad blogging and internet posting policies. A hearing on the complaint has been scheduled for January 25, 2011.
NLRB Attempting To Limit Employer Policies That Restrict Online Activity
Union and nonunion employers alike should be aware of a recent effort by the National Labor Relations Board (NLRB) to attack an employer's social media and conduct policies. The NLRB recently issued a complaint against a Connecticut ambulance service for terminating an employee who posted disparaging remarks about her supervisor.
NLRB Attempting To Limit Employer Policies That Restrict Online Activity
Union and nonunion employers alike should be aware of a recent effort by the National Labor Relations Board (NLRB) to attack an employer's social media and conduct policies.
NLRB Issues Complaint Against Employer For Facebook Termination
A case pending before the Supreme Court, discussed by the Washington Post January 15, shows the importance for employers to not only draft strong technology use policies but also to strictly enforce such policies according to their written terms. It also highlights the need for technology use policies to cover devices beyond computers, such as mobile phones, pagers and other wireless devices. Likewise, the scope of the policies should reach beyond e-mail to address other means of communication like text and instant messaging.
Are Employees Facebook Posts Protected Activity?
Employers often ask whether they can terminate an employee who posts negative comments about his coworkers or supervisor on his Facebook page. For private-sector employers, this question has gone largely without an answer from the courts. There are no cases of which I am aware holding that terminations for Facebook are per se unlawful. One of the few significant risks for Facebook firings is the risk of violating the National Labor Relations Act (NLRA). This risk has materialized in a complaint filed by the National Labor Relations Board (NLRB).
Union's "Orchestrated" Refusal To Work Overtime Found Unlawful.
A federal appeals court recently ruled that United Healthcare Workers West, an affiliate of the Service Employees International Union (SEIU), violated federal law by telling housekeepers and linen aides at a San Francisco hospital to refuse to perform overtime work without giving the hospital ten-days prior notice.
"You've Got Mail" - Court Reverses NLRB Decision.
A federal appellate court recently held that an employer violated federal labor law by disciplining an employee for sending union-related emails to her co-workers. The court disagreed with the National Labor Relations Board (NLRB), finding that "substantial evidence does not support the Board's determination that [the employee] was disciplined for a reason other than that she sent a union-related email."
Broad Confidentiality Provisions in Handbooks Can Be Unlawful.
On March 13, 2009, the U.S.
Court of Appeals for the First
Circuit affi rmed an NLRB
decision holding that an
employer violated the National
Labor Relations Act (NLRA)
when it discharged an
employee for violating a policy
requiring employees to keep
the terms of their compensation
confi dentlal.
NLRB Memo Addresses Workers' Right To Engage In Political Advocacy.
On July 22, 2008, the National Labor Relations Board's (NLRB) Office of the General Counsel issued a guidance memorandum (GC 08-10) to its Regional Directors, Officers-in-Charge and Resident Officers addressing unfair labor practice (ULP) charges involving political advocacy.
'Tis the (Political) Season: NLRB Clarifies Its Rules on Politics at Work.
Basic workplace etiquette dictates that religion, sex, and politics are taboo conversation topics. But in this contentious election season, the American workplace is politically charged, with many employees eager to speak out on issues that affect their employment. Of course, employee expressions of political sentiment are not limited to presidential election years. Pending legislation can stimulate arguments, and as many employers saw in May, 2006, proposed immigration reforms sparked nationwide protests, disrupting some employers' workplaces.
Confidentiality Provision May Violate Federal Labor Law.
The National Labor Relations Board (NLRB) recently held that a temporary employment agency violated federal labor law by including a confidentiality provision in the employment contract between the agency and a temporary worker, and by terminating the worker for violating that provision. The NLRB held that the provision was unlawful because employees reasonably could construe it as restricting discussions with union representatives. This decision is important because the National Labor Relations Act (NLRA) prohibits work rules that restrict discussion of wages or working conditions among employees or with a union, or rules which might "reasonably be construed" to restrict such discussions. Northeastern Land Services, Ltd. d/b/a The NLS Group and Jamison John Dupuy, 352 NLRB No. 89 (June 27, 2008).
Confidentiality Provision In Employment Agreement May Violate Federal Labor Law.
The National Labor Relations Act (NLRA) prohibits work rules that restrict discussion of wages or working conditions among employees or with a union, or rules which might reasonably be construed to restrict such discussions. Recently, the National Labor Relations Board held that a temp agency violated the NLRA by including a confidentiality provision in the employment contract between the temp agency and a temporary worker, and by terminating the worker for his violation of that provision. The Board held that the provision was unlawful because employees reasonably could construe it as restricting discussions with union representatives. In re: Northeastern Land Services, Ltd. and John Dupuy, NLRB Case No. 1-CA-39447, June 27, 2008.
Preventing Union Activities Via Company Email Gets Easier.
Email communication has become common at the workplace during the last 10 years or so. It is a fast, cheap, discrete, and efficient way of distributing information about work-related matters. But these same characteristics make email an ideal method for employees to communicate among themselves regarding non-work matters, including union organizing activities.
New year, new rules: e-mail policies and the National Labor Relations Act (pdf).
Whether an employer's e-mail policy may violate an employee's rights has been the subject of debate in today's electronic workplace.
Employers May Limit E-mail Use for Union Solicitation.
In a long-awaited decision, the National Labor Relations Board (NLRB or Board), held that employers have the right to implement and enforce a policy prohibiting employees from using the companys e-mail system for non-job-related solicitations. In The Guard Publishing Company, 351 NLRB No. 70 (12/16/07), the Board held that employees do not have a statutory right to use the employers e-mail system to solicit on behalf of unions.
You've Got Mail - NLRB Sends Employers a Holiday Gift.
"(E)mployees have no statutory right to use...(an employer's) e-mail system for Section 7 purposes." So said the National Labor Relations Board (NLRB) in a long-awaited decision finding that an employer has the right to restrict use of its e-mail system based on its property interest in the computer equipment. Specifically, the NLRB ruled that an employer's policy prohibiting the use of its system for "non-job-related solicitations" did not violate Section 8(a)(1) of the National Labor Relations Act.
NLRB Issues Decision on E-mail Solicitation.
The National Labor Relations Board has issued a much-anticipated decision giving employers substantial control over their e-mail systems. In The Register Guard, 351 NLRB No. 70 (Dec. 16, 2007), the Board held that employees do not have broad rights to use such systems to organize or advocate union causes.
Board Decision Finds Employers E-Mail Policy Valid But Discriminatory Enforcement Issues Remain Unclear.
In a decision that warrants careful consideration by employers, a three/two majority of the National Labor Relations Board (NLRB) recently held that an employer did not violate the National Labor Relations Act (NLRA) by maintaining an e-mail policy that prohibited employees from using its e-mail system to send non-job-related solicitations. See Guard Publishing Co., 351 NLRB No. 70 (Dec. 16, 2007, released Dec. 21, 2007).
Court Enjoins Employer From Enforcing Confidentiality Provision.
Many schools have provisions in their employee handbooks or employment contracts that make clear that an employee's salary and other compensation elements are to be kept confidential. In many cases, the school warns that the employees breach of that confidentiality will lead to discipline, up to and including termination of employment.
Common Workplace Rules Held to Discourage "Protected Activity" (pdf).
Court finds provision barring fraternization among workers violated federal law.
Security Company Must Allow Fraternization, Says DC Circuit.
Most employers think it's legal to prohibit employee fraternization, but they must take into account the NLRA's prohibition on restricting certain protected concerted activities.
Federal Court Finds Confidentiality Rule Violates NLRA.
Because it could be construed to prohibit employees from discussing the terms and conditions of their employment, even though it does not expressly prohibit employees from doing so.
DC Circuit Determines That Fraternization Policy Violates Federal Labor Law.
The District of Columbia Court of Appeals recently overruled the National Labor Relations Board (the Board), and determined that an employer maintained an unlawful fraternization policy that violated the National Labor Relations Act (the Act). See Guardsmark LLC v. NLRB (Feb. 2, 2007). The policy, which was maintained in the employers handbook, provided that employees were not to fraternize on duty or off duty, date or become overly friendly with the clients employees or with co-employees.
NLRB Will Consider Whether Employees' Use of Employer's E-Mail is Protected Concerted Activity Under NLRA.
The National Labor Relations Board (NLRB or Board) has announced that it will hold oral argument on March 27, 2007, on the issue of whether employees' use of their employer's e-mail system is protected concerted activity under the National Labor Relations Act (NLRA).
"Disloyal" comments not held protected by federal labor law (pdf).
Court overturns verdict to reinstate employee.
NLRB Allows Hospitals to Ban Buttons Suggesting Unsafe Staffing (pdf).
In Sacred Heart Medical Center, 347 NLRB No. 48
(June 30, 2006), the National Labor Relations Board
upholds the right of a hospital to restrict nurses from
wearing buttons that suggest that patient safety is
being compromised.
The NLRB's Developing Rules Regarding E-mail Policies.
Employers sometimes forget that the National Labor Relations Act applies to employer e-mail policies affecting employee union activity or non-union activity that promotes employee mutual benefit. Unfortunately, the National Labor Relations Board (Board) has been slow to adapt to workplace changes and has struggled to develop consistent rules regulating e-mail policies.
