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Home > Federal Law Articles > Labor Law > Protected Concerted Activity

Articles Discussing Protected Concerted Activity Under The NLRA.

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

April 14, 2014 | Goldberg Segalla Filed Under: Protected Concerted Activity

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.

Recent Board Cases Reach Different Results in Review of Employer Work Rules

April 11, 2014 | Littler Filed Under: Protected Concerted Activity

Littler

A trio of recent cases highlights the National Labor Relations Board’s current focus on employer work rules and conduct policies. Under Section 8(a)(1) of the National Labor Relations Act, workplace rules that “explicitly restrict” an employee’s exercise of protected concerted activity are unlawful. Even workplace rules that do not explicitly limit employees’ rights may be illegal if employees reasonably would understand the rules to prohibit such activity. The NLRB’s two-member Republican minority and its three-member Democrat majority differ sharply on that point.

National Labor Relations Board Invalidates Hospital’s Values and Standards of Behavior Policy

April 9, 2014 | Littler Filed Under: Protected Concerted Activity

Littler

The National Labor Relations Board (the Board) recently issued yet another decision invalidating common handbook policies and work rules. This case is the most recent in a long series of cases striking down common rules governing employee conduct. In Hills and Dales General Hospital, 360 NLRB No. 70 (Apr. 1, 2014), the Board held that three provisions in a non-union hospital’s Values and Standards of Behavior Policy (the Policy) were invalid on their face because employees could reasonably construe the provisions to prohibit employees from engaging in protected concerted activities.

NLRB Clarifies Lawful Weingarten Representation Activity and Permissibility of Unilaterally Requiring Interviewees to Attest to the Veracity of Investigatory Interview Notes

April 9, 2014 | Littler Filed Under: Protected Concerted Activity

Littler

On March 25, 2014, the National Labor Relations Board affirmed the Administrative Law Judge’s ruling that an employer violated various sections of the National Labor Relations Act by engaging in retaliatory acts against an employee for his conduct in representing a coworker at an investigatory interview, and by unilaterally adopting a requirement that employees certify the veracity of investigative interview notes. Murtis Taylor Human Services Systems, 360 NLRB No. 66 (Mar. 25, 2014).

Legal Alert: Fifth Circuit Finds Confidentiality Provision Violates NLRA

April 3, 2014 | Ford Harrison Filed Under: Protected Concerted Activity

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.

EEOC to Discuss Social Media in the Workplace at Public Hearing

March 6, 2014 | Littler Filed Under: Protected Concerted Activity

Littler

The Equal Employment Opportunity Commission (EEOC) has announced that it will discuss the EEO law implications of social media use in the workplace during a public meeting next week. Topics to be addressed include how social media plays a role in recruitment and hiring, harassment, and records retention and discovery.

Workplace “Griping” Can Be Grounds For Termination

May 29, 2013 | Goldberg Segalla Filed Under: Protected Concerted Activity

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

Legal Alert: NLRB Strikes Down Employer’s Handbook Policies

February 4, 2013 | Ford Harrison Filed Under: Protected Concerted Activity

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.

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

November 6, 2012 | Ford Harrison Filed Under: Protected Concerted Activity

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

November 2, 2012 | Goldberg Segalla Filed Under: Protected Concerted Activity

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

October 19, 2012 | Ford Harrison Filed Under: Protected Concerted Activity

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

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

October 3, 2012 | Ford Harrison Filed Under: Protected Concerted Activity

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.

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

August 3, 2012 | Ford Harrison Filed Under: Protected Concerted Activity

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).

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