Today, the U.S. Court Court for the D.C. Circuit struck down a rule proposed by the NLRB that required employers to post workplace notices describing employees' rights to form a union or face a possible unfair labor practice charge. You can read the decision, National Association of Manufacturers v. NLRB, or click here for a summary of the decision posted at Workplace Prof Blog. Click here for links to our earlier posts on this topic.
Adria Richards is a self-described “endlessly enthusiastic technology evangelist.” While attending a large technology conference in Santa Clara, California, Ms. Richards overheard two men sitting behind her making a series of crude, sexually inappropriate jokes (click here for a link to Ms. Richards’ blog entry titled Forking and Dongle Jokes Don’t Belong at a Tech Conference). She tweeted “not cool,” and asked for help in talking with the offending men. The conference sponsors agreed with her, and spoke with the men. One of the men took to Twitter on Ms. Richards’ behalf, tweeting that she "had every right to report me to [conference] staff, and I defend her position.”
Employment lawyers anticipate that employers’ social media policies and their use of independent contractors will be hot button issues in the New Year, much like they were in 2012. Recently Mintz Levin’s Mitch Danzig spoke about social media, independent contractors, and the law with George Chamberlin, executive editor of the Daily Transcript in San Diego, CA. The video of their conversation also recaps the Daily Transcript’s Employment Law Roundtable.
The National Labor Relations Board has issued yet another decision pertaining to non-unionized workplaces. This time, in Supply Technologies, LLC, the Board found that an employer’s mandatory grievance-arbitration policy violated Section 7 of the National Labor Relations Act (which includes the broad right “to engage in [ ] concerted activities for the purpose collective bargaining or other mutual aid or protection)” because employees would “reasonably” read the policy as preventing them from filing unfair labor practice charges with the Board.
The National Labor Relations Board’s closed out an already busy year addressing social media’s impact on employee rights in non-unionized workplaces (see our prior related blog entries here, here, here, and here) with yet another social media ruling – this time involving Facebook. On December 14, 2012, in the matter of Hispanics United of Buffalo, Inc. and Carlos Ortiz, the NLRB held that employees’ Facebook comments about another employee’s criticism of their job performance were protected concerted activity under Section 7 of the National Labor Relations Act. Therefore, the Board held, the employer violated Section 8 of the NLRA when it terminated the employees for the bullying tone of their Facebook comments.
The NLRB has again weighed in on workplace social media policies. And, consistent with its recent decisions in Costco Wholesale Corp. and Karl Knauz Motors, Inc., found DISH Network’s social media policy unlawful. Specifically, citing both cases, the Board found that DISH Network’s social media policy improperly banned employees from making “disparaging or defamatory comments about DISH Network.” The Board further found that the policy’s ban on negative electronic activities during “Company time” was unlawful because it failed to convey that negative discussion can occur during breaks and other non-working hours.
The National Labor Relations Board's Division of Advice Endorses Appropriately Tailored Employment At-Will Policies
On November 1, 2012, the National Labor Relation Board’s Acting General Counsel released two Advice Memoranda from its Division of Advice that should calm the nerves of employers who include employment at-will policies in their handbooks. The Advice Memoranda, which you can access here and here, appear to come in response to a flurry of activity in February when the NLRB challenged the employment at-will policies of two employers.
What a year it’s been for the National Labor Relations Board! Under the guise of preserving workers’ rights under Section 7 of the National Labor Relations Act, which includes the broad right “to engage in [ ] concerted activities for the purpose collective bargaining or other mutual aid or protection,” the NLRB has:
• Invalidated a policy prohibiting employees from making statements that “damage the Company, defame any individual or damage any person’s reputation” was overly broad, in that it would “reasonably tend to chill employees” in the exercise of their Section 7 rights to protest working conditions (read more);
• Found that a company’s blanket policy of requesting participants in an internal investigation to keep the investigation confidential improperly infringes on employees’ Section 7 rights (read more);
• Otherwise sought to expand its considerable influence over both unionized and non-unionized workplaces (read more).
Although some fans of the NFL may think it happened too late to save their team’s season, the membership of the NFL Referees Association is back at work after the National Football League and the union of its officials reached an agreement settling a three month labor dispute. Given the popularity and financial success of the NFL, which success was threatened when the NFL locked out its referees and substituted them with replacement refs, many may wonder why such a dispute took place at all.
There is no denying that the NLRB has recently devoted significant attention to employee’s use of social media. Since August 2011, the Board's Acting General Counsel, Lafe Solomon, issued three reports outlining his view of how the NLRA applies to employers’ social media policies and employees’ social media postings. Click here and here for our commentary on those GC reports and for links to the reports themselves. Until earlier this month, however, the Board itself had not weighed in on social media policies.
Employers Beware: Is EEOC Joining the NLRB to Require that Employers Not Instruct Employees to Maintain the Confidentiality of an Ongoing Investigation of an Employee Complaint?
By David Barmak
Lorene Schaefer, a mediator, arbitrator and workplace investigator, has reported on the One Mediation blog that by a letter of August 3, 2012 the Buffalo, New York office of the EEOC notified an employer that the employer’s written policy warning employees who participate in an investigation not to discuss the matter and providing that employees who do so may be subject to discipline including termination of employment may be a “flagrant violation” of Title VII and itself an adverse employment action. While the full text of the EEOC’s letter has not been published and the facts in the underlying case are not known, it appears that the case involved complaints of sexual harassment from multiple women.
The National Labor Relations Board continues to expand the scope of the National Labor Relations Act in union and non-union workplaces – this time taking issue with an employer’s policy prohibiting employees from discussing ongoing internal investigations.
As sensible employers everywhere realize, it is important to maintain confidentiality during the course of an internal investigation. The Board apparently disagrees, taking the position that a blanket policy of requesting participants in an internal investigation to refrain from discussing the investigation violates the NLRA. Specifically, in Banner Health System, the Board found that an employer’s desire to protect the integrity of its investigations was not a legitimate business justification sufficient to overcome the employees’ NLRA section 7 rights to engage in concerted activity – that is, generally, to discuss issues related to their compensation, benefits or working conditions.
The United States Court of Appeals for the District of Columbia Circuit recently joined other courts in reining in the efforts of federal agencies to legislate by administrative action. Specifically, in E.I. Du Pont De Nemours and Company v. NLRB, the D.C. Circuit held that the National Labor Relations Board overstepped its authority when it departed from prior NLRB precedent without “reasoned justification.
On May 30, 2012, the National Labor Relations Board (NLRB or the Board) Acting General Counsel issued a press release announcing publication of its report on social media, in which it examined seven cases involving policies governing the use of social media by employees. For information pertaining to the earlier two reports, click here.
There has been much written about the NLRB rule requiring employers- even those without unionized workforces- to a notice about union rights. Click here, here, here, here, and here for earlier blog entries. On April 17, 2012, the United States Court of Apeal for the D.C. Circuit barred enforcement of the rule, at least for now, while litigation is pending.
More to come...
FEDERAL COURT REJECTS BID TO SCRAP THE NLRB'S RULE REQUIRING NON-UNION EMPLOYERS TO POST NOTICE OF UNIONIZATION RIGHTS
The NLRB’s new notice-posting requirement is one step closer to reality as the United States District Court for the District of Columbia has, in National Ass'n of Manufacturers v. National Labor Relations Board, dismissed a claim by various business groups claiming that the NLRB had overstepped its rulemaking authority in requiring the notice.
NRLB Report: Employers' Social Media Policies Must be Narrow, Must not Restrict Right to Engage in Protected Activities
The National Labor Relations Board (NLRB or the “Board”) released a report providing important guidance to employers on drafting social media policies that comply with its interpretation of labor laws. The report draws on several recent cases addressing employer policies limiting the use of social media by employees, and builds on a similar report issued last fall.
According to a press release issued by the Board, the report underscores two main points:
NLRB Says Employers - Even Those With Non-Unionized Workforces - Cannot Require Non-Management Employees to Waive Their Rights to Proceed with Class, Collective, or Other Joint Claims Addressing Wages, Hours or Working Conditions
In yet another controversial move, the National Labor Relations Board (NLRB) has ruled that employers violate the National Labor Relations Act (NLRA) when they require non-management employees, as condition of employment, to waive their rights to pursue class, collective or other joint claims regarding their wages, hours and working conditions in court and before an arbitrator.
ONCE AGAIN, THE NLRB POSTPONES IMPLEMENTATION OF RULE REQUIRING NON-UNION EMPLOYERS TO POST NOTICE OF UNIONIZATION RIGHTS
The NLRB has postponed the implementation date for its new notice-posting rule three more months – from January 31, 2012 to April 30, 2012. The rule would require businesses to post notices apprising workers of their right to unionize. This is the second time the NLRB has postponed its implementation, this time doing so at the request of a federal court presiding over a case started by various business groups that are challenging the legality of the rule. The NLRB recognized that the three-month postponement will “facilitate the resolution of the legal challenges that have been filed with respect to the rule.” You can read our previous posts regarding this rule here, here, and here, and the NLRB’s latest press release here. We will continue to update you as events unfold.
NLRB Postpones Implementation of Rule Requiring Non-Union Employers to Post Notice of Unionization Rights
According to a press release posted on its website, the National Labor Relations Board has postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.
Social Network Warning - Employers Should Use Caution in Disciplining Employees for On-line Statements
My colleagues Drew and Tyrone just published an alert relating to the always-interesting topic of employees use of social media, and the risks to employers who discipline employees for posting statements relating to the conditions of their workplace. You can read the entire alert here.
We recently alerted you that beginning on November 14, 2011, union and non-union employers alike must post unionization rights notices in their workplaces. You can access that alert here. The National Labor Relations Board has now released two versions of those posters (a 11 x 17 version and a two-page 8.5 x 11 version), both of which you can access by clicking here.
In a decision made public on August 31, Specialty Healthcare and Rehabilitation Center of Mobile, the National Labor Relations Board overturned longstanding precedent to adopt a new, pro-union approach for determining what constitutes an appropriate bargaining unit in non-acute health care facilities, such as nursing homes and rehabilitation centers. Read the Board's press release here.
Many employers have employees sign confidentiality agreements aimed at prohibiting disclosure of confidential business information to third parties, and it has been widely assumed that such clauses were lawful. That assumption may no longer be accurate, however, as a recent First Circuit decision has held that confidentiality clauses in employment contracts can constitute a per se violation of employees’ protected employee rights under the National Labor Relations Act (NLRA) if the clauses can be read as prohibiting all discussions of wages, hours, and working conditions. Click here to read the full article.