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Total Articles: 135

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.

Seventh Circuit Court of Appeals Defers to NLRB: Employer Unlawfully Discharged Employee for Brief Refusal to Work

In Staffing Network Holdings, LLC v. NLRB, the Seventh Circuit Court of Appeals in Chicago recently upheld the National Labor Relations Board’s decision that an employer unlawfully fired an employee who briefly refused to work in response to the perceived unfair treatment of a fellow employee.

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.

NLRB Administrative Law Judge Rules that Employer Unlawfully Discharged Employee Who Warned Co-Worker of Looming Discharge

Recently, an Administrative Law Judge (ALJ) with the National Labor Relations Board found that an employer violated the National Labor Relations Act (NLRA) when it discharged an employee for informing a co-worker that the co-worker’s job was in jeopardy.

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.

Court of Appeals Rebukes NLRB: “Common Sense” Allows Employer to Prohibit Employees from Wearing “Prison Shirts”

Eschewing legal niceties in favor of common sense, the U.S. Court of Appeals for the District of Columbia Circuit recently ruled that AT&T did not violate federal labor law when it prohibited its employees from wearing union-created t-shirts that said “Inmate #” on the front and “Prisoner of AT$T” on the back. The court refused to enforce a 2-1 decision of the National Labor Relations Board (NLRB) in which an NLRB majority ruled that AT&T had violated the National Labor Relations Act when it disciplined employees for wearing the t-shirts.

NLRB Continues to Expand Employee Protections Under Federal Labor Law

In Sabo, Inc. the National Labor Relations Board (Board) found that the employer, a vending machine company, violated the National Labor Relations Act (NLRA) when it fired an employee who had expressed concerns about job security to a co-worker. Although the employer claimed it fired the employee for spreading gossip about her co-worker, the Board found, in a 2-1 decision, that the employer fired the employee because she engaged in protected, concerted activity which, in this case, consisted of the employee’s discussion with her co-worker about a feared job loss.

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).

NLRB Punishes Employer for Past Unlawful Handbook Policies Despite Employer’s Attempt to Repudiate

In Boch Imports, Inc., the National Labor Relations Board (NLRB) found that the employer, a car dealership, violated the National Labor Relations Act because the dealership’s social media and dress code policies were overbroad and interfered with employee rights to engage in protected, concerted activity. In particular, the employer’s social media policy required employees to identify themselves when posting comments about the employer and also prohibited employees from using the dealership’s logos in any manner. The employer’s dress code policy prohibited employees who had contact with the public from wearing pins, insignias, or other message clothing.

NLRB Finds Employee’s Extremely Profane Facebook Post was Protected Concerted Activity

The National Labor Relations Board recently demonstrated how far it will go to protect employees in the name of protected concerted activity.

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.

NLRB Sidesteps Register-Guard; Still Orders New Elections in Purple Communications

Late last week, the NLRB issued its highly anticipated decision in Purple Communications, 21-CA-095151, which many NLRB observers believed would re-visit whether or not employers may prohibit their employees from using company equipment, especially e-mail, for non-business purposes. The Board saved that issue for another day, but its ruling still provides important lessons to employers.

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).

NLRB Expands the Boundaries of Employee Protest; Limits Employers’ Discipline Rights

Last week, the NLRB addressed whether, and to what extent, employees can criticize their employer in public. In MikLin Enterprises, the Board held 2-1 that a Jimmy John’s franchisee violated Section 8(a)(3) of the National Labor Relations Act (NLRA) when it disciplined employees for distributing posters which implied the franchisee’s sick leave policy would lead to customers getting sick from the franchisee’s food. The Board held MikLin supervisors further violated the NLRA when they encouraged employees, supervisors and managers to harass union supporters via social media.

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.

Under the FLSA, the NLRB Says Even "Non-Concerted" Activity Can Be Concerted

My colleagues and I have noted repeatedly over the past couple of years that the National Labor Relations Board takes a very expansive view of the National Labor Relations Act, even (and perhaps especially) when the case does not involve a union or any union activity at all.

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.

NLRB Finds That “Employee Rights” Savings Provision in Employee Handbook Does Not Cure Overbroad Employee Conduct Rules

In First Transit, Inc., the National Labor Relations Board (NLRB) found that a savings provision in an employee handbook recognizing employees’ right to decide whether they want to have union representation was insufficient to cure the employer’s overbroad employee conduct rules. The employer unsuccessfully argued that even if the rules were overbroad, the “employee rights” savings provision cured any violations of the National Labor Relations Act.

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.

NLRB Finds That Employer Unlawfully Disciplined Employees for Their Use of the Employer’s Email System, But Upholds Employer’s Ethics and Conduct Policy

In California Institute of Technology Jet Propulsion Laboratory, the National Labor Relations Board affirmed a split ruling regarding the employer’s alleged discriminatory conduct and employee conduct policy. The NLRB first found that the employer violated Section 8(a)(1) of the National Labor Relations Act by discriminatorily issuing written reprimands to five employees who used the employer’s email system to communicate with their coworkers about a new background check requirement, while permitting employees to use the email system for similar non-work purposes. But the NLRB also found that the employer’s ethics and conduct policy was not overly broad, and thus it did not violate the Act.

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.

NLRB Affirms ALJ on Facebook Firing Case

As we have discussed in several previous alerts, the National Labor Relations Board continues to pursue complaints against employers related to an expanding realm of policies and social media activity. In another recent Facebook-related ruling, the Board affirmed the decision by an Administrative Law Judge (ALJ) in Design Technology Group LLC dba Bettie Page Clothing, a case with some amusing facts involving a retail store that discharged three employees who had complained about their manager in a series of posts on Facebook. The ALJ ruled that firing the employees shortly after they had made the posts constituted an unfair labor practice. The Board affirmed the ALJ’s recommendation to order the Company to reinstate the employees with back wages, and required the Company to post a nationwide notice because of an unlawful policy in its handbook.

NLRB Orders Reinstatement and Backpay for Employee who was Unlawfully Discharged for Discussing Salary Information at Work

Despite the uncertainty surrounding the legitimacy of the current National Labor Relations Board in the wake of the Noel Canning decision, the Board has continued to issue decisions that have serious consequences for employers. The most recent example comes from the Board’s decision in Jones & Carter, Inc., where it upheld an Administrative Law Judge’s determination that a non-union employer violated the National Labor Relations Act when it terminated an employee for discussing salaries with her co-workers.

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.

National Labor Relations Board Adds to Facebook Jurisprudence; Finds Posts to be Protected, Concerted Activity

The National Labor Relations Board issued its first social media decision in September. Last week, the NLRB issued another social media decision in a case involving employees’ Facebook comments and an employer’s right to discipline employees for making such comments. In its decision, the NLRB made clear that it would apply settled labor law principles to cases arising in the social media context.

NLRB Issues First Rulings on Social Media Policies

This fall, the National Labor Relations Board (NLRB or the Board) issued its first rulings interpreting the application of the National Labor Relations Act (the Act) to an employee’s posting of derogatory statements concerning his employer on social media. In short, under Section 7 of the Act, “employees shall 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 . . .,” and, under Section 8(a)(1) of the Act, employers are prohibited from interfering with or restraining employees from exercising those rights. As more and more people express their views about their employers and the jobs they perform using one or more of the many social media sites, employers must be careful to avoid violating the Act when: (i) attempting to regulate their employees’ speech; and (ii) disciplining employees for sharing their opinions on social media.

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.

Recent NLRB Division of Advice Memoranda Regarding At-Will Disclaimers Helpful, but More Guidance Needed

We have updated clients about recent cases from the National Labor Relations Board (NLRB) that have invalidated employer at-will employment policies. In a win for employers, however, last week the NLRB’s Division of Advice (Advice) issued two advice memos recommending the dismissal of unfair labor practice charges alleging that employers’ at-will policies violated the National Labor Relations Act (NLRA). The new memos further muddle the confusing decisions issued by the Board, but hopefully signal that the General Counsel may start providing more predictable rulings that employers can use in adjusting their at-will policies.

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.

NLRB’s Fine-Toothed Comb Approach Invalidates More Employer Handbooks and Policies

Social media and other employer policies continue to draw close scrutiny from the National Labor Relations Board (NLRB). Recently, the NLRB issued its first binding decision involving employees’ rights under a common social media policy in Costco Wholesale Corporation. As we reported earlier this month, the NLRB quickly used Costco Wholesale as the basis for its opinion in another case involving social media posts by an auto dealership employee.

NLRB Finds That Employer Lawfully Fired Employee Over Facebook Posts, But Its Courtesy Policy Violated The NLRA

On October 1, 2012, the National Labor Relations Board (NLRB) issued another decision addressing the intersection between the National Labor Relations Act (the Act), social media, and handbook policies prohibiting discourteous behavior. The NLRB reviewed two separate but equally important issues in Karl Knauz Motors, Inc., where it analyzed whether the employer unlawfully fired an employee after he posted photos on Facebook, and also examined whether a courtesy policy in the employer’s handbook violated the Act.

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.

National Labor Relations Board Limits Employer’s Right to Discipline Employee for Making Vulgar, Threatening Comments

In yet another challenge to employers’ ability to manage their workplaces, the National Labor Relations Board (NLRB) recently ruled that an employer violated the National Labor Relations Act (NLRA) when it terminated an employee who wrote “vulgar, offensive, and threatening” statements on several union newsletters left in an employee break room, and then lied about it when questioned by his employer. Although the employer was allowed to investigate and interrogate the employee about the statements, the NLRB said that it went too far when it actually terminated the employee for lying about and writing the statements.

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.

National Labor Relations Board Finally Weighs in on Social Media Policies

As previously reported, we have been closely following the National Labor Relation Board’s (NLRB) General Counsel’s advice memoranda on social media policies. Recently, the NLRB issued its first binding decision involving employees’ rights under a common social media policy. In Costco Wholesale Corp., the National Labor Relations Board ruled that Costco’s online communications policy violated employees’ Section 7 rights under the National Labor Relations Act (NLRA). The policy prohibits employees from posting statements “that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement.”

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.

In Another Attack on General Employment Policies, NLRB Nixes Confidential Workplace Investigations

As we have warned recently, the National Labor Relations Board has aggressively expanded its efforts to find violations of employees’ Section 7 rights, even in areas well beyond labor disputes. We have highlighted opaque and contradictory guidance on social media policies, the assault on at-will employment policies, and a rejection of a common off-duty access policy. Last week, the NLRB again showed its desire to invalidate common policies even in the absence of any union activity, employer coercion, or Section 7 activity whatsoever. In Banner Health Systems, the Board found a violation of the National Labor Relations Act because, in order to protect the integrity of her investigation, one of the Arizona hospital’s HR officers asked an employee not to discuss the matter under investigation with co-workers.

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).

In Another Attack on General Employment Policies, NLRB Nixes Confidential Workplace Investigations

As we have warned recently, the National Labor Relations Board has aggressively expanded its efforts to find violations of employees’ Section 7 rights, even in areas well beyond labor disputes. We have highlighted opaque and contradictory guidance on social media policies, the assault on at-will employment policies, and a rejection of a common off-duty access policy. This week, the NLRB again showed its desire to invalidate common policies even in the absence of any union activity, employer coercion, or Section 7 activity whatsoever. In Banner Health Systems, the Board found a violation of the National Labor Relations Act because, in order to protect the integrity of her investigation, one of the Arizona hospital’s HR officers asked an employee not to discuss the matter under investigation with co-workers.

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.

NLRB Issues Opaque Guidance to Employers on Social Media Policies

As we have recently detailed at employer conferences and in conjunction with the American Bar Association, the National Labor Relations Board’s (NLRB) Acting General Counsel Lafe Solomon issued his third guidance memorandum regarding the interplay between Section 7 protected concerted activity, social media in the workplace, and related employer policies. The first guidance on August 18, 2011, focused primarily on social media-related adverse employment decisions. The second memorandum on January 24, 2012, also addressed adverse employment actions, but contained a more detailed analysis of employer workplace policies. This third guidance attempted to give employers additional insight into the Board’s view of social media policies, but ended up muddying the issue even further.

National Labor Relations Board Finds Off-Duty Access Policy Violates Workers’ Rights

In Sodexo America LLC, the National Labor Relations Board (NLRB) recently ruled that USC Hospital’s off-duty access policy violated employees’ Section 7 rights under the National Labor Relations Act (NLRA). The policy prohibited off-duty employees from entering the hospital unless they were visiting a patient, receiving medical treatment, or conducting “hospital-related business,” which the hospital’s handbook defined as “the pursuit of the employee’s normal duties or duties as specifically directed by management.”

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).

New NLRB Web Site Aimed at Educating Employees about Their Right to Engage in Protected Concerted Activity

As we have reported, the National Labor Relations Board’s notice posting rule is on hold and faces an uncertain future in the federal appellate courts. Amid the uncertainty, the NLRB launched a new web page aimed at educating employees about their rights under the National Labor Relations Act (NLRA). The web page, entitled “Protected Concerted Activity,” touts recent successful efforts by employees and the NLRB in bringing charges against employers for violations of employee rights under the NLRA. The cases highlighted by the NLRB on the new web page involve various industries from coast to coast. All of the cases, however, involve employers who allegedly violated or were found to have violated the NLRA by disciplining or discharging employees who had engaged in protected, concerted activity.

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 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.

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 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.

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.

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.

"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 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.

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.

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.

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.

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 employer’s 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 employer’s 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 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 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 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.

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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