Articles Discussing Protected Concerted Activity Under The NLRA.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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).