In McLaren Macomb, the NLRB overturned two decisions that had permitted employers to include confidentiality and nondisparagement provisions in severance agreements. “Mere proffer” of a severance agreement that conditions receipt of benefits on the “forfeiture of statutory rights” violates the NLRA. This Insight includes key takeaways from the
Articles Discussing Protected Concerted Activity Under The NLRA.
NEW NLRB DECISION PROHIBITS OVERLY BROAD LANGUAGE IN NON-DISPARAGEMENT AND CONFIDENTIALITY PROVISIONS IN SEVERANCE AGREEMENTS
Executive Summary: The National Labor Relations Board (the Board) recently overruled two prior Board decisions and held that overly broad language in non-disparagement and confidentiality clauses included in severance agreements provided to eleven bargaining unit employees violated the employees’ Section 7 rights under the National Labor Relations Act (NLRA).
NLRB Holds Confidentiality, Nondisparagement Provisions Illegal in Severance Agreements Presented to Section 7 Employees
On February 21, 2023, the National Labor Relations Board (NLRB) issued an important decision that may fundamentally change how and when employers use confidentiality and nondisparagement provisions.
NLRB Reverses Course to Limit Property Owners’ Right to Limit Off-Duty Access for Section 7 Activity
In another ruling promoting a pro-labor agenda under the Biden administration, the National Labor Relations Board (NLRB) reverted to its pre-2019 precedent on the balance between the rights of property owners and the rights of employees under Section 7 of the National Labor Relations Act (NLRA).
NLRB Reaffirms “Special Circumstances” Test for Union Insignia Cases
On August 29, 2022, in a 3-2 decision, the National Labor Relations Board (NLRB or Board) reaffirmed that when an employer interferes in any way with its employees’ right to display union insignia, the employer must prove special circumstances that justify its interference. See Tesla, Inc., 32-CA-197020, 371 NLRB 131 (2022). In reaching this decision, the Board overruled a 2019 decision in which it held that the “special circumstances” standard only applied to employer policies that prohibited—rather than restricted—an employee from displaying union insignia.
NLRB Rules Employers Cannot Restrict Employees’ Right to Display Union Insignia
On August 29, 2022, the National Labor Relations Board (NLRB) issued a decision finding that absent special circumstances, employers may not enforce dress codes or uniform policies that interfere with employees’ right to display union insignia. 371 NLRB No. 131 (Aug. 29, 2022). The NLRB’s decision is a return to
Labor Board General Counsel Announces ‘Vigorous Enforcement’ of Protected Concerted Activity Charges
The National Labor Relations Board (NLRB) Acting General Counsel Peter Sung Ohr (AGC) has announced in a memorandum that his office will return to “vigorous enforcement” of employee rights under Section 7 rights of the National Labor Relations Act (NLRA).
Acting General Counsel Peter Ohr Issues Memorandum Regarding “Concerted” Activity
On March 31, 2021, Acting General Counsel Peter Ohr issued a memorandum addressing the concept of “concerted activity.” As brief background, under Section 7 of the National Labor Relations Act, employees have the right to engage in “concerted” activities for the purpose of “mutual aid or protection.”
What constitutes “concerted”
NLRB Approves Workplace Social Media Policy Limiting Employees’ Online Communications
Recently, the National Labor Relations Board (NLRB), in a split decision 2-1, approved a California-based ambulance company’s implementation of a social media policy that prohibited employees from “inappropriate communications” related to the company. The NLRB’s ruling reversed a decision by an administrative law judge, back in October 2019, that concluded
Protecting The Employer’s Internal Personnel Information After The Boeing Co.
Employees have a broad legal right to communicate with one another about wages, benefits, and other employment terms. To effectuate this broad right, the National Labor Relations Board has required employers to exclude such information from their confidentiality policies. In The Boeing Co.
Cell Phone Use on Hold in Manufacturing Plants After Recent NLRB Decision
The National Labor Relations Board (NLRB) issued a supplemental decision on May 20, 2020, finding lawful a policy prohibiting employees from possessing or using their cell phones on the manufacturing floor or at their workstations.
NLRB ALJ Reinforces Protection for Concerted Activity in Camp Counselor’s Termination
On March 25, 2020, a National Labor Relations Board Administrative Law Judge (“ALJ”) emphasized the broad reach of Section 7 of the National Labor Relations Act (“Act”) in non-union settings. Ground Zero Foundation d/b/a Academy for Creative Enrichment, Case 4-CA-245956. Charging Party was hired as a summer camp counselor, but
NLRB: Investigation Confidentiality Rules Are Lawful
Overruling Banner Estrella Medical Center, 362 NLRB 1108 (2015), the National Labor Relations Board (NLRB) has held that investigative confidentiality rules are lawful Category 1 rules under The Boeing Company, 365 NLRB No. 154 (2017), where by their terms the rules apply for the duration of any investigation. Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019). Where a rule does not, on its face, apply for the duration of any investigation, a determination is made whether one or more legitimate justifications exist for requiring confidentiality even after an investigation is over. If legitimate justifications exist, a determination is then made whether those justifications outweigh the effect of requiring post-investigation confidentiality on employees’ exercise of their Section 7 rights.
Board Overturns Purple Communications, Restores Employer Right to Restrict Email Use
On December 17, 2019, in a 3-1 decision split along party lines, the National Labor Relations Board (NLRB) restored to employers the right to restrict employees from using company email systems for nonbusiness purposes. The decision, issued in Caesars Entertainment Corp., reverses the NLRB’s 2014 ruling in Purple Communications, which held that workplace rules prohibiting employee email use for union activity were presumptively invalid under Section 7 of the National Labor Relations Act (Section 7). Because Section 7 applies to all employers, not just unionized ones, this NLRB ruling affects almost every U.S. employer that provides a corporate email system.
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.