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.
Articles Discussing Protected Concerted Activity Under The NLRA.
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
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: 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.
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.
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 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 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 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.