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Total Articles: 126

Employers Given Greater Control Over Property Access Rights of Off-Duty Contractors

Employers now enjoy greater freedom to prohibit off-duty contactor employees from accessing private property to engage in Section 7 activity, after a recent ruling by the National Labor Relations Board (the “Board”).

Employers May Not Require Employees to Use Their Real Names on Social Media, NLRB Says

The National Labor Relations Board (NLRB) Office of General Counsel has released an advice memo providing insight into the types of social media work rules that are unlawfully overbroad following its 2017 ruling in The Boeing Company. The CVS Health advice memo found that all the social media rules were lawful except for a requirement that employees use their real name when discussing the company on social media and a prohibition on disclosing "employee information" on social media.

NLRB Reminds Employers: ‘Fighting’ During Union Organizing May Be Protected Activity

The National Labor Relations Board has reminded employers that they must tolerate a certain degree of heated discourse during a union organizing campaign before discipline or termination may be warranted.

Third Thursdays with Ruthie: Policies and Protected Concerted Activity

Both union and non-union employers need to be sure that their policies and procedures do not violate Section 7 of the National Labor Relations Act. In this episode of the Third Thursdays podcast, Ruthie Goodboe and Sarah Kuehnel discuss what constitutes protected concerted activity, the recent narrowing of this definition, and practical takeaways for employer policies.

Protected Concerted Activity: Healthcare Employers Should Remain Wary Despite Narrowing Labor Board Standard

In a decision that affects both union and non-union employers, the National Labor Relations Board (NLRB or Board) has taken what is likely the first step toward reining in the expanded scope of what the Obama-era Board considered “protected, concerted activity” under the National Labor Relations Act (NLRA).

Labor Board Narrows What May Be Considered Protected Activity

The National Labor Relations Board (NLRB) has narrowed the circumstances under which a complaint made by an individual employee is considered concerted activity under Section 7 of the National Labor Relations Act (NLRA). Alstate Maintenance, LLC, 367 NLRB No. 68 (Jan. 11, 2019).

NLRB Narrows the Scope of NLRA Section 7 Protection for Employee Complaints

On January 11, 2019, the National Labor Relations Board issued an employer-friendly decision in Alstate Maintenance LLC, 367 NLRB 68 (2019), narrowing the scope of protection for employee complaints. In doing so, it reversed an Obama-era Board decision that had expanded employee protections, and clarified that even if an employee states a gripe referencing coworkers through the plural pronoun “we,” it is not necessarily protected and may be a valid basis for discipline or discharge. The Board also declared that an individual complaint is not elevated to protected status simply because it is made to a manager and in the presence of other employees. This decision narrows the Board’s definition of “protected concerted activity” and distinguishes group complaints from individual gripes in the workplace. The three Board members appointed by President Trump joined in the ruling, while the one member appointed by President Obama penned a very critical dissent.

Labor Board Makes It Harder For Employees To Claim Their Complaints Are Protected

In a 3-1 ruling that should be hailed by employers across the country, the National Labor Relations Board just made it harder for employees to successfully claim that their workplace gripes constitute protected concerted activity. The January 11 decision (Alstate Maintenance, LLC) reverses a 2011 Obama-era decision that was widely derided as tilting the playing field too far in favor of employees. Under that precedent, essentially any employee complaint made to management in the presence of coworkers was sufficient to qualify as protected concerted activity under the National Labor Relations Act (NLRA). Under Alstate Maintenance, however, the NLRB has returned to the more stringent standard whereby only those complaints that seek to initiate group action, or that involve truly “group” complaints, will be considered protected concerted activity.

NLRB Orders Hospital to Reinstate Former Employee Who Shared Staffing Concerns With Media

A recent decision by a National Labor Relations Board (NLRB) administrative law judge (ALJ) serves as a good reminder that even nonunion employees in healthcare settings are protected by Section 7 of the National Labor Relations Act (NLRA). On November 2, 2018, ALJ Paul Bogas held that a former nonunion employee of Maine Coast Memorial Hospital had engaged in protected activity when she sent a letter to a local newspaper.

National Labor Relations Board Finds Video Surveillance Of Workers’ Union Activity Violates NLRA

The National Labor Relations Board (NLRB) recently ruled that an employer’s video surveillance of its employees in the process of distributing Union materials and literature (and thereby breaking Company rules) was illegal under the National Labor Relations Act (NLRA). While normally this would be lawful, here the underlying policy was illegal and therefore all conduct involved in enforcing the rule was unlawful.

Purple Communications No More? A Look Back at the Landmark Case and Ahead to What May Take Its Place

On August 1, 2018, the National Labor Relations Board (NLRB) invited briefs on “whether the Board should adhere to, modify, or overrule its 2014 decision in Purple Communications, Inc.” The following questions and answers revisit Purple Communications and examine the standard the NLRB may return to if it does indeed overrule that landmark case.

eLABORate: NLRB Rules That Employer's Video Surveillance of Workers' Union Activity Violated NLRA

A recent ruling by the National Labor Relations Board (NLRB) should serve as a warning to employers that misguided efforts to “keep an eye” on possible union activity in the workplace, can have severe legal consequences.

NLRB Issues Invitation for Comment on Unions' Use of Employer Email Systems

May union organizers lawfully use their employer’s email system for union-related communications? This question has been asked and answered, asked again and answered differently, and is now being asked a third time. This week the National Labor Relations Board (NLRB) issued an invitation for comment on rescinding or revising the current rule of law.

The NLRB Expands the Use of Confidentiality Rules in The Boeing Co.

As most employers are aware, the National Labor Relations Board’s decision in The Boeing Co., 365 NLRB No. 154 (2017), established a new standard that significantly broadens the scope of rules, policies, and handbook provisions that lawfully may be maintained under the National Labor Relations Act. The General Counsel’s recent Memorandum GC 18-04 (Guidance on Handbook Rules Post-Boeing) provides important guidance about how the Board’s decision will affect many types of workplace rules, including taking on the challenging task of categorizing confidentiality rules as lawful or unlawful.

Enforcing Civility: The Board's New Boeing Standard Influences a Range of Policies Promoting Positive Workplaces for Employers and Employees

In The Boeing Co., 365 NLRB No. 154 (2017), the Board approved the maintenance of rules promoting “harmonious interactions and relationships,” and requiring civility in the workplace, as categorically lawful. “To the extent the Board in past cases has held that it violates the Act to maintain rules requiring employees to foster ‘harmonious interactions and relationships’ or to maintain basic standards of civility in the workplace, those cases are hereby overruled.”

NLRB Counsel Returns Common Sense To Workplace Rules

The National Labor Relations Board General Counsel, Peter Robb, recently outlined the agency’s plan of action for evaluating workplace rules in his latest memorandum to regional offices—and the message is welcome news for employers. The 20-page memo is a reaction to the Board’s December 2017 decision in Boeing Co. that upended the controversial Lutheran Heritage standard and helped start to restore balance to workplace rules. This memo takes the next step in that process.

NLRB Revives Helpful Personnel Policies

Traditionally, employers rely on personnel policies and employee handbooks to communicate workplace expectations and benefits to employees. Earlier this decade, the National Labor Relations Board (“NLRB”) began aggressively scrutinizing those policies and concluding that many “could”—as opposed to would or did—interfere with employee-protections arising from the National Labor Relations Act (“NLRA”). At the time, many well-intentioned policies fell short of the NLRB's broad, subjective analysis, triggering policy revisions or deletions. Earlier this month, however, the NLRB General Counsel issued a new guidance document, Memorandum GC 18-04, confirming that the NLRB has switched from the earlier antagonistic approach to a more balanced analysis of standard personnel policies. The NLRB’s new approach will help employers communicate important workplace policies and reduce the threat of subjective unfair labor practice charges.

NLRB General Counsel Issues Handbook Guidance

Executive Summary: In a 20-page memorandum dated June 6, 2018, National Labor Relations Board (NLRB) General Counsel Peter Robb issued guidance to the Regions on handbook rules in light of the Board’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017).

NLRB General Counsel Issues Guidance Regarding Handbook Rules

On June 6, 2018, NLRB General Counsel Peter Robb issued a lengthy 20-page Memorandum (GC 18-04) providing detailed guidance regarding enforcement of “Handbook Rules Post-Boeing.”

NLRB Issues Memo on Employer Handbook Rules

Guidance from the National Labor Relations Board (NLRB) gives employers more latitude in drafting workplace rules, including rules regarding workplace civility. A memo from NLRB General Counsel Peter Rob directs regional directors to shift the presumption about whether a work rule violates the National Labor Relations Act (NLRA) in favor of employers. The memo was issued to provide guidance on the standards to use in reviewing work rules following the NLRB's Boeing decision in December 2017.

eLABORate:NLRB General Counsel Provides Guidance Memo on Handbook Provisions

On June 6, 2018, the NLRB’s General Counsel released a guidance memo providing insight into practical application of the Board’s recent decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017).

“Personal” Pizza: Employee’s Individual Gripe Not Protected Under The NLRA

A recent decision by a National Labor Relations Board Administrative Law Judge has re-affirmed that “personal gripes” made by employees are unprotected by federal labor law. This decision comes from the NLRB’s regional office in Baltimore, but is in line with the Board’s recent commitment to clarify this issue for employers across the country (Bud’s Woodfire Oven d/b/a Ava’s Pizzeria).

NLRB Failed to Support Conclusion that Employee’s Disparaging Comments Were Protected, Not Disloyal

The U.S. Court of Appeals for the District of Columbia Circuit has refused to enforce the NLRB’s order finding that an employee’s discharge violated the National Labor Relations Act because the Board did not satisfy the Supreme Court’s two-prong Jefferson Standard test for determining whether an employee’s disparaging statements to third parties about his employer are protected.

NLRB Holds that Hospital's Dress Code Policies Violate the NLRA

Executive Summary: In a 2-1 decision, the National Labor Relations Board (“NLRB” or the “Board”) held that a hospital’s policy that required direct patient care providers to wear hospital branded badge reels violated the National Labor Relations Act (NLRA or the Act) because that policy was not specifically limited to immediate patient care areas. See Long Beach Memorial Medical Center, Inc. and California Nurses Association/National Nurses Association (CAN/NNU), Case 21-CA-157007 (April 20, 2018).

NLRB GC: Participating in Nationwide ‘Day Without Immigrants’ Is Protected Concerted Activity

Participating in the February 2017 “Day Without Immigrants” demonstration was protected concerted activity, according to an August 30, 2017, advice memorandum released on March 13, 2018, by the National Labor Relations Board General Counsel’s Division of Advice.

Employee’s Improper Access to Secured Area Outweighs Right to Engage in Concerted Activity, NLRB Finds

The National Labor Relations Board has held that an employee lost the protection of the National Labor Relations Act when he improperly accessed a secure area of the employer’s hotel, even though he did so in order to engage in otherwise protected concerted activity. KHRG Employer, LLC, 366 NLRB No. 22 (Feb. 28, 2018).

eLABORate: NLRB Adopts New Employer-Friendly Standard for Employee Handbooks

The National Labor Relations Board (“NLRB”) has adopted a new, more employer-friendly standard for evaluating the legality of employment policies, rules, and handbook provisions. In doing so, the NLRB overturned its 2004 decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). The new standard aims to take a “real world” view of handbook provisions, scrapping Lutheran Heritage’s focus on simply whether rules could be “reasonably construed” by employees to prohibit the exercise of NLRA rights. The new standard instead focuses on the “nature and extent” of a contested rule’s “potential impact” on employees’ rights under the National Labor Relations Act ("NLRA") and its “legitimate justifications.”

Get Your Hands Out of My Handbook: Lutheran Heritage Test Eviscerated as One of Miscimarra’s Parting Shots

On December 14, 2017, in The Boeing Company, the National Labor Relations Board (NLRB) reversed the 2004 decision in Lutheran Heritage that had created an unworkable standard that had made most employee handbooks across the nation unlawful in the view of the Board. Following on the Lutheran Heritage Village-Livonia case, the Obama Board had expanded—to previously unimagined degrees—its ability to fly-speck company rules and policies.

Another Federal Appeals Court Rejects Workplace Recording Bans

The 5th Circuit Court of Appeals recently became the second federal appeals court this year to hold that an employer’s rule prohibiting recording in the workplace violates the National Labor Relations Act (NLRA). In a July 25 decision, the court agreed with the National Labor Relations Board that such a rule could discourage unionizing or other protected activity. This case is yet another reminder that employers need to tread carefully when it comes to personnel policies restricting audio and video recording (T-Mobile USA, Incorporated v. NLRB).

Off-Duty Employees Had Right to "Hang Out" on Employer's Property to Publicize Dispute

xecutive Summary: An administrative law judge recently ruled that a Pacific Northwest fast food chain violated the National Labor Relations Act (NLRA) by maintaining a policy that prohibited off-duty employees from loitering or “hanging out” on store property, even though no employee was actually disciplined for violating the policy.

Labor Board Allows Evidence to Explain Employee Handbook Ban on Video Recording

The National Labor Relations Board has denied a motion for summary judgment by the NLRB’s General Counsel in a case involving Mercedes-Benz U.S. International Inc.’s maintenance of an employee handbook rule prohibiting the use of cameras and video recording devices without prior approval.

Second Circuit Rules on Bounds of Protected Concerted Activity

In a case at the edges of protected employee conduct during a union organizing drive, the Second Circuit Court of Appeals last week found that an employee’s expletive-laden Facebook post cursing out his boss—and his boss’s mother, too—was within the “outer bounds” of “protected concerted activity” under the National Labor Relations Act (NLRA). In addition to making moms everywhere upset so close to Mother’s Day, the court’s decision highlighted the wide latitude given to employee speech, especially when in the heated midst of a unionization campaign.

!@#$% Vote Yes for the UNION! Facebook Post Protected by the NLRA? Second Circuit Says Yes

In National Labor Relations Board v. Pier Sixty, LLC, No. 15-1841 (April 21, 2017), the Second Circuit upheld the National Labor Relations Board’s (NLRB) finding that an employee’s Facebook post, although “vulgar and inappropriate,” did not exceed the National Labor Relations Act’s (NLRA) protection. The court cautioned, however, that the claimant’s conduct sits at the “outer-bounds of protected, union-related comments.”

Second Circuit Upholds NLRB Order Finding Derogatory Facebook Post Protected Under the National Labor Relations Act

xecutive Summary: On April 21, 2017, the United States Court of Appeals for the Second Circuit in National Labor Relations Board v. Pier Sixty, LLC, enforced an order of the National Labor Relations Board (NLRB) finding that an employee did not lose the protections of the National Labor Relations Act (Act) by posting a derogatory comment about his supervisor on Facebook while encouraging his co-workers to vote for the union in an upcoming election and in concluding that the employer violated the Act by discharging the employee. The Court of Appeals stated that the employer “failed to meet its burden of showing that Perez's [the employee’s] behavior was so egregious as to lose the protection of the NLRA under the Board's ‘totality-of-the-circumstances’ test.”

F-Word Facebook Firing Flipped By Federal Court

In a ruling that could leave employers fuming and possibly cursing, a federal appellate court ruled that an employee who used a public Facebook page to curse out not just his boss, but also his boss’s mother and entire family, should not have been fired from his job. Instead, the 2nd Circuit Court of Appeals decided late last week that the expletive-filled rant was protected by federal law because it was considered protected concerted activity (NLRB v. Pier Sixty, LLC).

What Can You Say? D.C. Circuit Speaks on Employee Confidentiality

In a ruling that affects both union and non-union employers, the U.S. Court of Appeals for the D.C. Circuit recently held in Banner Health System v. NLRB that employers may not prohibit employees from discussing information related to employees’ salaries and discipline. While this decision does not break new ground, it does provide employers with some guidance on how the D.C. Circuit will scrutinize efforts to maintain confidentiality surrounding HR investigations.

Employees, Political Advocacy and the NLRB – What Can an Employer Do?

In the first few weeks of the Trump Presidency, there have been numerous marches, protests and other forms of political advocacy expressing views both in support of and in opposition to the President’s various appointments, executive orders and other actions. Employers concerned about protests potentially planned for the next few months and political advocacy in general understandably have questions surrounding how political demonstrations may affect their workplaces.

Workplace Dress Codes – Auto Dealer Can't Bar Workers from Wearing Message Pins, Court Affirms NLRB

A divided panel of the U.S. Court of Appeals for the First Circuit has upheld a National Labor Relations Board decision that a Massachusetts automobile dealer’s policy banning the wearing of “message pins” violated union insignia protections under the National Labor Relations Act. Boch Imports, Inc., d/b/a Boch Honda v. NLRB, Nos. 15-1653, 15-1721 (1st Cir. June 17, 2016).

NLRB Member Criticizes Board’s Handbook Rule Review Standard

The legality of employer work rules continues to draw National Labor Relations Board scrutiny on a regular basis.

NLRA Protections for Derogatory Statements and Four-Letter Words Attacking a Company and its Managers

More and more employers, union and non-union alike, are getting ensnared in efforts by the National Labor Relations Board (NLRB or “Board”) to aggressively expand employee rights under the National Labor Relations Act (“Act”), to the detriment of employers. While employees have the express right under Section 7 of the Act “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” such as discussing their terms and conditions of employment or lodging complaints about the workplace, the NLRB continues to condone bad behavior as “protected behavior” so long as it is tangentially related to concerted activity under the Act.

The NLRB takes another cut at non-disclosure agreements.

In recent years, the National Labor Relations Board has increased its scrutiny of various employer practices, including those of non-unionized employers. Among the areas of scrutiny have been non-disclosure of confidential information provisions, which the NLRB has ruled can be in violation of Section 7 of the National Labor Relations Act, specifically the provision that protects employees' rights to engage in concerted activities for the purpose of mutual aid and protection." A recent example of the NLRB's stance on non-disclosure provisions - as well as other, seemingly anodyne employment documents - can be found in the matter of Quicken Loans and Austin Laff, decided by Administrative Law Judge Dickie Montemayor.

Workplace Recording Bans and the NLRA: Are "No-Recording" Policies Still Allowed?

The ubiquity of smartphone applications ("apps") that record audio and/or video – coupled with the risk of workplace discussions being uploaded to social media for all to hear – has led many employers to implement "no-recording" policies that prohibit employees from recording workplace interactions. It may come as a surprise to many employers, especially non-union employers, that a law from the 1930s, the National Labor Relations Act ("NLRA" or the "Act") has recently been construed to generally prohibit broad bans on workplace recordings. In a recent decision addressing a company's no-recording policy, the National Labor Relations Board' ("NLRB" or "the Board") held that such bans unlawfully interfere with the rights of employees — unionized or not — to engage in concerted activity regarding their terms and conditions of employment.

Are You on Candid Camera? The NLRB Just Made It More Difficult to Ban the Use of Recording Devices in the Workplace

On December 24, 2015, the National Labor Relations Board (NLRB) issued a decision in Whole Foods Market, Inc., 363 NLRB No. 87 (Dec. 24, 2015), finding for the first time that it is unlawful for an employer to adopt a work rule that prohibits employees from recording company meetings or conversations with coworkers without a valid legal or business justification. This decision is another in a long line of cases in which the NLRB has deemed employer handbook policies unlawful. Employers that maintain policies that do not pass muster under NLRB law risk having their union-election victories overturned—making it crucial for employers to understand the current state of labor law with respect to such policies.

What’s not to “like” . . . .? Maybe this Second Circuit decision.

The 2d U.S. Circuit Court of Appeals has ruled that an employee’s “like” of a posting by a former employee, and a second employee’s comment on the original posting both were protected activity, and that firing those two employees violated the National Labor Relations Act (NLRA). Three D, LLC v. NLRB, No. 14-3284 (2d. Cir. Summary Order Oct. 21, 2015).

Second Circuit Upholds NLRB's Triple Play Decision, Expanding Section 7 Protections for Employees' Social Media Activity

Obscenities alone—even when viewed by an employer's customers—do not deprive employees engaged in protected concerted activity of the National Labor Relations Act's ("NLRA" or the "Act") protections. So held the U.S. Court of Appeals for the Second Circuit when recently affirming the National Labor Relations Board's ("NLRB" or "the Board") decision in Three D, LLC (Triple Play), 361 NLRB No. 31 (2014). The court also affirmed the Board's decision to require an employer to meet a high standard of proof to justify terminating employees who make critical, and even false, statements about the employer while engaging in Section 7 activity in social media. Consequently, Triple Play has broadened employees' ability to use social media to complain about work with impunity.

Employee Facebook Likes Are Protected Activity, Appellate Court Rules

In a first-of-its-kind ruling, the 2nd Circuit Court of Appeals has held that Facebook "likes" can be protected activity under the National Labor Relations Act (NLRA).

eLABORate: Second Circuit Affirms NLRB's Decision that Facebook "Likes" and Comments are Protected by the National Labor Relations Act

Although Facebook and similar social media sites represent novel platforms for employee communications, employees’ online conduct often maintains the established protections of the workplace. To that end, the National Labor Relations Board (“NLRB”) has zealously attempted to regulate and police employers’ social media policies and responses to employees’ social media activity, and recently obtained a critical ruling from the Second Circuit affirming its position.

Court Upholds Employer’s Right to Prohibit “Inmate/Prisoner” Shirts at Work

An employer lawfully prohibited employees who interact with customers from wearing t-shirts printed with the words “Inmate” and “Prisoner” and containing black and white horizontal stripes, a federal appeals court has held, rejecting a 2-1 decision of the National Labor Relations Board. In Southern New England Telephone Company v. National Labor Relations Board, No. 11-1099 (D.C. Cir. 2015), the court held that “it was reasonable for AT&T to believe that the ‘Inmate/Prisoner’ shirts may harm AT&T’s relations with its customers or its public image,” thereby permitting the company to restrict the employees’ right to don union-messaged apparel.

D.C. Circuit Reverses NLRB's Decision that AT&T Violated Employees' Rights When It Suspended Employees for Wearing T-Shirt Disparaging the Company

Executive Summary: It was probably not that surprising that the U.S. Court of Appeals for the District of Columbia reversed the National Labor Relations Board's (NLRB) decision in Southern New England Telephone Company, 1356 NLRB No. 118 (2011). Of all the controversial decisions issued by the NLRB since President Obama was able to appoint a majority of the members on the five?member Board, none may have been perceived as more hostile to the business community than this decision.

Is the NLRB is expanding its list of “inherently” concerted protected activities under Section 7?

Employee, fired after mentioning of a help-wanted ad to a co-worker, was fired in unlawful retaliation for engaging in “inherently concerted activity,” according to the National Labor Relations Board. Sabo, Inc. d/b/a Hoodview Vending Co. and Assoc. of Western Pulp and Paper Workers’ Union, 362 NLRB No. 81, April 30, 2015).

Employee's online and obscenity-laced rant viewed as protected activity by the NLRB.

By a two-to-one vote, a three-member panel of the National Labor Relations Board (NLRB) upheld an administrative law judge’s findings that an employer unlawfully discharged an employee because of social media comments – including strong obscenities – that were personally critical of a company manager. Pier Sixty, LLC and Hernan Perez, et al, NLRB Cases No 02-CA-068612 and 02-CA-070797, March 31, 2015.

Company violates NLRA by firing employee based solely on belief that concerted activity occurred.

Most employers are aware that under the National Labor Relations Act (NLRA), it is unlawful for an employer to prohibit employees from discussing wages among themselves, or to threaten an employee with discharge if they engage in such discussions.

Credible threats of insubordinate activity could override NLRA protections for employees’ Facebook postings.

A few months ago, the National Labor Relations Board (the Board) determined that an employee’s profanity-laced tirade did not lose the protection of the National Labor Relations Act (NLRA), because the tirade followed the employer’s statement that if the employee didn’t like his job, he could quit.

Employees Should Not Have Unfettered Recording Rights

The National Labor Relations Board has held that employees have a broad right under federal labor law to discuss their “wages, hours and working conditions” on social media. But the NLRB has yet to deal with the convergence of next-generation recording technology and social media. Will the NLRB expand its social media doctrine to protect workplace recording so long as the employee intends to use the recording to discuss working conditions on social media?

NLRB Finally Finds Facebook Activity That It Doesn’t "Like"

The National Labor Relations Board (NLRB) finally found a Facebook conversation it couldn’t bring itself to “Like.” In Richmond District Neighborhood Center, Case 20-CA-091748 (October 28, 2014), the NLRB held that a Facebook conversation between two employees was so egregious that it was not entitled to the protection of concerted activity afforded under the National Labor Relations Act (NLRA).

NLRB Declines to Revisit Employee Use of Company Email Systems . . .

Under current National Labor Relations Board (NLRB) law, employees do not have a statutory right to use their employers’ email systems for union organizing or for other purposes. Email systems remain employer property for now, as the Board, in Purple Communications, Inc., 361 NLRB No. 43 (2014), declined the NLRB’s General Counsel’s invitation to overrule Register Guard, 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). But, in continuation of a troubling trend, the Board in Purple found yet another employer work rule—a “no disruption” rule—to be unlawful, resulting in an employer’s election victory being overturned and a new election being ordered.

Protected Concerted Activity on Facebook: The NLRB “Likes” This

The National Labor Relations Board (NLRB) continues to expand its interpretation of the forms of employee online behavior that constitute protected concerted activity under the National Labor Relations Act. Recently, in Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31 (August 22, 2014), the NLRB held that the simple act of clicking the “like” button under a Facebook post may, in certain circumstances, constitute activity protected by Section 7 of the National Labor Relations Act (NLRA).

Inconsistent discipline leads to reinstatement of employee fired for “throat slashing” motion.

Can an employer fire an employee who allegedly makes a throat slashing motion to a co-worker who interprets the motion as a threat? According to a recent NLRB decision, maybe not. Nichols Aluminum, LLC and Teamsters Local Union No. 371, Case No. 25-CA-08260, august 18, 2014.

Asking coworkers for assistance in supporting legal claim may constitute concerted activity under the NLRA.

Most employers are aware that Title VII of the Civil Rights Act protects individuals from harassment and discrimination, and further protects them from filing claims alleging such harassment or discrimination. However, many employers are not aware that Section 7 of the National Labor Relations Act (NLRA) also protects employees who attempt to garner support for a potential claim related to employment.

NLRB continues to criticize employer restrictions on employees’ use of confidential information.

In another of the increasingly frequent decisions by the National Labor Relations Board critical of employers’ policies and handbook provisions, a Board panel recently determined that the confidentiality rule included in an employer’s “Code of Business Conduct” was overly broad and restricted employees’ right to engage in concerted activities, a restriction in violation of Section 7 of the National Labor Relations Act (NLRA). Fresh & Easy Neighborhood Market, Case Nos. 31-CA-077074 and 080734 (July 31, 2014).

Board Reminds Us – No-Access Rule Except With Permission Unlawful

The National Labor Relations Board (“Board”) recently reminded employers to tread carefully when enacting no-access (no re-entry) rules. They held an employer’s policy prohibiting employees from remaining on-premises after their shift “unless previously authorized by” their supervisor was unlawful under the National Labor Relations Act (“Act”), a ruling nearly identical to a 2012 ruling. See American Baptist Homes of the West d/b/a Piedmont Gardens and Service Employees International Union, United Healthcare Workers-West.

Employee’s profanity-laced outburst may not preclude protection under the National Labor Relations Act.

Here are the basic facts of a case (Plaza Auto Center, Inc. and Nick Aguirre, Case 28-CA-022256, May 28, 2014) that has raised a question regarding the inherent conflict between “protected activity” under the National Labor Relations Act (NLRA) and insubordinate behavior by employees:

NLRB Rules That Employee who Launched “F-Bombs” at Company Owner Did Not Lose Protection Under Federal Labor Law

If an employee curses at and blatantly disrespects the owner of the company for whom he works, most people would reasonably conclude that the employee can be discharged. However, a recent decision issued by the National Labor Relations Board (NLRB) defies this logic. In Plaza Auto Center, Inc., 360 NLRB No. 117 (May 28, 2014), on remand from the Ninth Circuit Court of Appeals, the Board concluded that an employee who made concerted complaints about compensation did not lose the protection of the National Labor Relations Act (NLRA) despite the fact that the employee dropped “f-bombs” in the face of the owner of the company. The Board’s decision in Plaza Auto Center serves as another reminder of the agency’s aggressive prosecution of alleged employer retaliation against employees for engaging in protected concerted activity, particularly in the non-union workplace.

Does your employee handbook violate the National Labor Relations Act? Based on recent NLRB decisions, it’s likely.

Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to: “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . .” Section 8 of the NLRA states that it shall be an “unfair labor practice” for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”

NLRB Strikes Down Work Rule Prohibiting Off-Duty Employee Access to Company Property

Executive Summary: On May 1, 2014, the National Labor Relations Board (NLRB) issued an order finding that Piedmont Gardens, a retirement community, violated § 8(a)(1) of the National Labor Relations Act (NLRA) when it implemented and enforced a policy restricting off-duty employee access to its property without prior supervisor authorization.

NLRB Moves to Permit Employees’ Use of Company Email Systems for Union Organizing and Other Section 7 Rights

Close observers of the National Labor Relations Board (NLRB) in recent years had long expected the Board to one day revisit—and, possibly, overrule—Register-Guard, 351 NLRB 1110 (2007), the landmark NLRB opinion holding that employees do not have a statutory right to use their union or nonunion employers’ email systems for union organizing, or other purposes, under Section 7 of the National Labor Relations Act (NLRA). It appears that that time is finally upon us.

Handbook’s prohibition on “negative comments” about team members found to have violated the NLRA.

Like many employers, Hills and Dales General Hospital’s employee policies included provisions prohibiting “negative comments” about fellow team members, and precluded engaging in “negativity or gossip.” The policies further included a requirement to represent the hospital within the community “in a positive and professional manner in every opportunity.”

Employers Wise to Review Employee Confidentiality Policies as Fifth Circuit Upholds NLRB’s Invalidation of Overly Broad Provisions

It has been a difficult last few years for the National Labor Relations Board (NLRB). Not only are hundreds of decisions of the agency in limbo due to a Supreme Court challenge involving President Barack Obama’s purported recess appointment of several members of the agency while the U.S. Senate was still convening in regular pro forma session, but several of the agency’s rulings have been invalidated by various Circuit Courts of Appeal. The board recently managed to win one, however, as the U.S. Court of Appeals for the Fifth Circuit upheld a board decision that a company’s employee confidentiality policy was an unfair labor practice in violation of Section 8(a)(1) of the National Labor Relations Act (NLRA). The case serves as a reminder to employers to review their own employee confidentially policies.

eLABORate: The NLRB Continues To Take Expansive View of Section 7 Rights in First Transit, Inc. Decision

On April 2, the National Labor Relations Board (the “NLRB”) issued a decision finding that a rule prohibiting discourteous behavior placed an unlawful restriction on employee’s rights under the National Labor Relations Act (“NLRA”). Section 7 of the NLRA protects employees’ rights to engage in “concerted activities” for “mutual aid or protection.” Section 8 of the NLRA prohibits employers from interfering with or restraining employees’ rights under Section 7. Protected concerted activities include discussions between (or on behalf of) two or more employees about work-related issues, including pay, safety concerns or working conditions. An employee’s activity may only be considered “concerted” if it is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Meyers Industries, Inc., 268 N.L.R.B. No. 73 (1984). A hot topic with the NLRB has been whether employee handbook provisions governing employee behavior unlawfully restrict employees’ Section 7 rights. See Broad 'At-Will Employment' Disclaimers Can Violate The National Labor Relations Act and NLRB Issues Its First Social Media Decision.

Legal Alert: Fifth Circuit Finds Confidentiality Provision Violates NLRA

Executive Summary: The Fifth Circuit recently found that a confidentiality agreement prohibiting disclosure of "financial" and "personnel information" was unlawful under the National Labor Relations Act (NLRA). Employers who use confidentiality agreements to protect their confidential business information should use caution to ensure that the terms of the agreement will not be construed to prohibit employee discussion of wages or other terms and conditions of employment.

Social Media & Protected Activity: Not Always a Third Rail for Employers

The efforts of the National Labor Relations Board (NLRB) to expand the definition of employee activity protected by section 7 of the National Labor Relations Act (NLRA) and its aggressive prosecution of employers alleged to have violated worker rights is well chronicled. It is completely understandable, therefore, that many human resources professionals and in-house counsel are reluctant to discipline employees when there is even a hint of protected concerted activity.

One-Day Walkouts: Protected Activity or Unprotected Absenteeism?

Over the last two years various community activist groups—many backed by labor organizations—have implemented aggressive, public strategies designed to disrupt the workplace and put pressure on employers, especially in the retail and fast food industries. The groups most often protest for higher wages and utilize street-side protests, media blitzes, in-store “flash mobs,” and periodic employee walkouts. These “single shift” walkouts, and the attempts by employers to address the disruption that they create, raise significant questions under the National Labor Relations Act (NLRA).

NLRB finds policy against certain "verbal comments or physical gestures" may restrict concerted activity.

The National Labor Relations Board (NLRB) has ordered a non-unionized hospital to rescind Code of Conduct provisions prohibiting “Verbal comments or physical gestures directed at others that exceed the bounds of fair criticism” and “Behavior . . . that is counter to promoting teamwork,” finding those prohibitions to be unfair labor practices. William Beaumont Hospital and Jeri Antilla, NLRB Case No. 07-CA-093885, January 30, 2014.

Prohibiting “Message” Clothing Without Business Reason Violates the NLRA

The National Labor Relations Board (NLRB) recently deemed a car dealership’s prohibition on “pins, insignias, or other message clothing which are not provided to them by the company” overly restrictive and a violation of the National Labor Relations Act (NLRA). Boch Imports, Inc., NLRB, No. 1-CA-83551 (January 13, 2014). According to the Board, by implementing and maintaining this rule in its employee handbook, the employer violated section 8(a)(1) of the NLRA, which prohibits employers from interfering with employees as they engage in concerted activity.

Blanket prohibition on "message" clothing violates the NLRA.

A car dealership’s prohibition on “pins, insignias, or other message clothing which are not provided to them by the company” was deemed overly restrictive and a violation of the National Labor Relations Act (NLRA). Boch Imports, Inc., NLRB, Case No. 1-CA-83551, January 13, 2014.

NLRB Taking Close Look At Photography Policies

In February of 2009, a Wisconsin medical center fired several nurses after they electronically posted patient x-rays to their Facebook page, revealing the presence of a potentially embarrassing foreign object. As a result, the local sheriff’s office investigated the medical center and ultimately referred the case to the FBI to determine whether any federal laws, such as the Health Insurance Portability and Accountability Act (HIPAA), had been violated.

Expression of "personal contempt" in Facebook group message did not constitute protected concerted activity.

By now, most employers are aware of a number of “Facebook Firing” cases, in which individuals who were fired for Facebook postings have been reinstated after the National Labor Relations Board (NLRB) found the postings to have been “protected concerted activity” under the National Labor Relations Act (NLRA). However, on May 8, 2013, an NLRB Associate Counsel sent an Advice Memorandum to his Regional Director, supporting the actions of a medical group that fired an employee after her postings to a private Facebook group message, and adding to the for the analysis of such circumstances. Tasker Healthcare Group d/b/a Skinsmart Dermatology, NLRB Div. of Advice, No. 4-CA-94222, May 8, 2013.

Workplace “Griping” Can Be Grounds For Termination

Watch what you wish for. There is a line in the sand between protected group activity and general “griping.” The distinction is critical, however, as it may spell the difference between unemployment or the impingement upon protected speech. In Tasker Healthcare Group, d/b/a Skinsmart Dermatology, the Charging Party participated in a group message on Facebook in which she utilized some harsh, and very critical language regarding her employment position. The conversation culminated with the charging party’s statements: “FIRE ME … Make my day.” When the employer did just that, the Charging Party unsuccessfully challenged the decision before the NLRB.

Legal Alert: NLRB Strikes Down Employer's Handbook Policies

Executive Summary: On the same day as the D.C. Circuit Court of Appeals determined President Obama's recess appointments are unconstitutional, the NLRB continued its assault on workplace rules and employee handbook policies. See DirecTV U.S. Direct Holdings, LLC, 359 NLRB No. 54 (Jan. 25, 2013). Regardless of whether the Board's decision withstands the D.C. Circuit's ruling, the case serves as a warning to employers to review their handbooks and other workplace policies to ensure compliance with the Board's most recent interpretations of the NLRA.

NLRB Clarifies Stance on Employment at Will Policies

The National Labor Relations Board (“NLRB”) continues to scrutinize employment at will policies, but that scrutiny seems to be more even-handed than anticipated.

NLRB Solidifies Position on Social Media

As the National Labor Relations Board (“NLRB”) continues to focus on union-free companies, it has solidified its position on social media by issuing two precedent-setting decisions. The NLRB’s concern with social media policies is that they may “chill” employees from exercising their rights to engage in protected, concerted activity under the National Labor Relations Act (“NLRA”). Until now, the agency’s actions related to social media were limited to decisions by the NLRB’s administrative law judges (“ALJs”) and guidance from the agency in the form of three non-binding memoranda. But in September 2012, the agency issued two Board-level decisions dealing with social media in the workplace: Costco Wholesale Club and Karl Knauz BMW, Knauz Auto Group.

Legal Alert: Snap Back to Reality: NLRB Steps Back from the Ledge on Employment At Will

Executive Summary: Following recent attacks on the employment at-will doctrine by one of the NLRB's Regions, the Board has stepped its position back somewhat, issuing two Advice Memorandums through its Associate General Counsel. In these opinions, the Board's Associate General Counsel takes the position that many employment at-will provisions may not violate employees' Section 7 rights.

NLRB's General Counsel Issues Halloween Guidance on Employee Handbook At-Will Disclaimers

Earlier this year, non-union employers (approximately 93% of private industry in the United States) and many labor and employment attorneys were surprised to learn that the National Labor Relations Board (NLRB) might deem rudimentary employee handbook at-will disclaimer language to violate employees’ rights under the National Labor Relations Act (the Act). Employee handbook at-will disclaimers are particularly common in states, like New York, where courts have held that the absence of such provisions helped to create an implied contract that limited the employer’s right to terminate the employee at-will.

Legal Alert: NLRB Takes on At-Will Employment

Executive Summary: During the past year, the National Labor Relations Board has begun chipping away at the employment at-will doctrine. Based on the activities of one of its regional offices, the Board appears intent on limiting the at-will doctrine by finding that at-will acknowledgments in employment handbooks violate employees' Section 7 rights.

Legal Alert: NLRB Upholds Employee's Discharge In First Facebook-Related Decision

Executive Summary: In its first published discipline/discharge decision involving employee Facebook access, the National Labor Relations Board has upheld the termination of an employee whose Facebook posts mocked an accident on his employer's property.

NLRB Issues Its First Social Media Decision

Although the National Labor Relations Board's Acting General Counsel has issued three advisory reports about his views on corporate social media policies within the past year, the Board had not decided an actual case. See NLRB Acting General Counsel Releases Third Social Media Report and NLRB General Counsel Releases Social Media Report. That changed on September 7, 2012, when the Board decided Costco Wholesale Corporation and United Food and Commercial Workers Union, Local 371, No. 34-CA-012421.

Definition of "concerted activity" continues to be construed broadly by the NLRB.

Recently, the National Labor Relations Board (NLRB) has issued a number of decisions restricting the ways in which employers can limit employee electronic communications, even when those communications may damage the company or another employee’s reputation. For many employers, those decisions have caused serious consternation, as companies now focus on what can and cannot be included in handbooks and policies. Many companies feel as if they are being faced with a decision between risking a violation of the National Labor Relations Act (NLRA) and protecting proprietary information, including confidential personnel information.

Employers Beware: NLRB Challenges Established HR Practices

The National Labor Relations Board (NLRB) has issued a number of recent opinions questioning and, in some instances, invalidating common employer practices and policies on the grounds of protecting employee rights under Section 7 of the National Labor Relations Act (NLRA). The impact of these decisions on handbook disclaimers and investigative procedures is addressed below.

Preserving Integrity of an Ongoing Investigation May Be Unlawful

Historically, management has been allowed to prohibit employees from discussing an ongoing investigation with co-workers and others, to preserve the integrity of the investigation. The common refrain at the end of such an interview from human resources was “Please do not discuss what we have talked about until the investigation is completed.” This must change as of July 30, 2012.

Legal Alert: NLRB Rejects Employer's Confidentiality Requirement for Internal Investigations

Executive Summary: In a 2-1 decision, the National Labor Relations Board (NLRB) held that an employer's efforts to protect the integrity of its internal investigations by instructing employees involved in the investigations not to discuss the matter with co-workers violates the National Labor Relations Act (NLRA). See Banner Health System, Case 28–CA–023438 (July 30, 2012).

Broad "At-Will Employment" Disclaimers Can Violate The National Labor Relations Act

At-will disclaimers in employee handbooks typically clarify that the employment may be terminated at any time, for any reason, and by either party, and ordinarily do not allow the at-will status to be modified unless it is reduced to writing and agreed to by the employer. Employers rely on these provisions to protect themselves from claims that an employee has an enforceable employment contract with the employer based on the handbook's employment provisions. Recently however, the National Labor Relations Board ("NLRB" or the "Board") has closely scrutinized and disapproved of broadly-worded at-will disclaimers that can have a "chilling effect" on the employee's right to engage in concerted activity under the National Labor Relations Act ("NLRA" or the "Act"), to the extent that they potentially imply that union representation and collective bargaining will not alter the at-will employment status. In two recent complaints, the NLRB's Acting General Counsel has taken issue with seemingly common at-will provisions, indicating that there may be a new enforcement target that all employers should be aware of when drafting at-will provisions.

Coming Into Focus - An Overview Of The NLRB's Most Recent Guidance On Social Media And Confidentiality Policies

In the last ten months, the National Labor Relations Board has issued three separate reports on social media. The first two reports, which were released in August 2011 and January 2012, left no doubt that the Board was paying close attention to employers' treatment of social media use by employees and scrutinizing policies that restricted employees' use of social media. The two reports focused primarily on employers' discipline of employees for content posted on social media sites and left many employers feeling like the Board's position on what was acceptable content for social media and related policies was lacking clarity.

Violation of the National Labor Relations Act (NLRA) leads to serious penalties.

Discipline imposed pursuant to a company policy that restricts employees from any discussions of their wage rates may implicate Section 7 of the National Labor Relations Act (NLRA). Section 7 protects the right of employees to engage in “concerted activities” with each other for the purpose of collective bargaining or in efforts to improve working conditions and terms of employment. On June 7, 2012, the National Labor Relations Board (NLRB) issued an opinion in which it affirmed an Administrative Law Judge’s decision that an employer violated the NLRA when it fired an employee for disclosing wage rates in violation of a company rule. Taylor Made Transportation Services, Inc, Case No.05-CA-036646 (June 7, 2012).

NLRB turns its attention to the elements of an acceptable Social Media Policy.

Section 7 of the National Labor Relations Act (NLRA) protects the right of employees to engage in “concerted activities” with each other for the purpose of collective bargaining or in efforts to improve working conditions and terms of employment. These concerted activities can be done in person, or by other methods of communication, including electronic media. Employers who terminate an employee based upon a social media posting that ultimately is determined to have been “protected concerted activity” may be violating Section 7 of the NLRA. An employer’s discipline or termination of an employee, if found to violate the NLRA, can lead to legal liability that may result in financial damages and reinstatement of the employee. That fact has created interest, consternation, and varying levels of panic among employers who are trying to balance the rights of employees to protected concerted activity with a company’s right to expect compliance with its policies and with attempts to protect confidential information.

NLRB Acting General Counsel Releases Third Social Media Report

Lafe Solomon, Acting General Counsel for the NLRB, issued a third report on May 30th focusing on social media policies. According to the report, the key question when developing a social media policy is whether restrictions could "reasonably be construed to chill the exercise of Section 7 rights" under the National Labor Relations Act. The report is interesting, in that it analyzes some specific company restrictions and then goes on to state whether the General Counsel's office considers the restrictions lawful or unlawful. Overall, six out of seven policies were deemed unlawful by the General Counsel's office, but it is important to keep in mind that the General Counsel's opinion is merely advisory and does not have the force of law.

The NLRB’s Latest Social Media Memo: At Least One Clear Answer

The National Labor Relations Board is continuing its focus on social media policies in the wake of recent obstacles to the agency’s attempts to expand its role among union-free employers.

NLRB General Counsel Releases Social Media Report

As the popularity of social media sites such as Facebook and Twitter continues to grow, so too do employers continue to struggle with addressing social media issues in an effective, yet legal, way.  A byproduct of this struggle is a social media report released by the National Labor Relations Board's Acting General Counsel in late January.  It provides a summary of all social media cases reviewed by the NLRB within the last year. 

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.

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.

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.

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.

"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.

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 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:

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.

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 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 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 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.

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.

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 employer’s actions violate Section 7 if those actions would “reasonably tend to chill employees” in the exercise of their rights under the NLRA.

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 employer’s 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'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."

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.

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.

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.

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 employee’s 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.
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