This past week, the D.C. Circuit Court of Appeals issued an important decision addressing two on-the-bubble workplace confidentiality policies – one which made the cut, while the other one made its way over to the legal equivalent of the NIT. The decision explored the boundaries of workplace directives related to the discussion of salary and employee discipline information and non-disclosure in investigations.
My colleague, Don Schroeder, was quoted in the Corporate Counsel article, What Employees Can Legally Say on Facebook – And Get Away With, in which he comments about the NLRB’s continued expansion of the meaning of protected concerted activity on social media. The article examines the boundaries of acceptable employee online speech and the legal protections employees can and cannot get under Section 7 of the National Labor Relations Act.
The NLRB has once again held that a mandatory arbitration agreement including a class/collective action waiver violates the National Labor Relations Act. With barely an acknowledgment that the Fifth Circuit reversed its last two decisions reaching the same conclusion, the Board ruled in Amex Card Service Co., No. 28–CA–123865 (Nov. 10, 2015), that Amex committed an unfair labor practice by maintaining and enforcing an arbitration policy that required employees, as a condition of their employment, to resolve all claims against the company through individual arbitration.
Despite previous NLRB rulings telling them to stop, some employers continue to impose broad prohibitions on personal employee communications over company email. As an administrative law judge recently reminded us, failing to carve out email use exceptions for periods during which employees are not actually working will continue to violate the National Labor Relations Act and can result in significant costs for employers in remedying such non-compliance.
In a refreshing decision for employers, the D.C. Circuit Court of Appeals earlier this month tossed an eyebrow-raising NLRB decision which permitted AT&T customer-facing and publicly visible technicians to wear faux prison garb in customers’ homes and in public. Writing for a unanimous panel in Southern New England Telephone Company v. NLRB, Judge Brett Kavanaugh’s introduction is sure to earn rave reviews from employers.
The NLRB continued its assault on employee handbooks and policies, as an administrative law judge recently found several provisions in the Macy’s handbook, including the confidential information policy, to be unlawful, as employees would reasonably read them to restrict protected concerted activity. Specifically, the judge ruled: “The Respondent violated Section 8(a)(1) of the Act by unlawfully restricting its employees’ use of information regarding their fellow employees and the Respondent’s customers, the use of the Respondent’s logo, and requiring the employees to notify Respondent’s Human Resources representative prior to providing information for a government investigation.”
The NLRB last week filed its brief at the Second Circuit Court of Appeals in the well-publicized Facebook “Like” firing case, Three D, LLC v. NLRB. Prior to the appeal, we discussed the NLRB’s August 2014 ruling here as part of a broader discussion of the Board’s recent crackdown on employers’ “overbroad” social media policies. The Second Circuit’s forthcoming decision will be one of the first appellate court decisions to weigh in on the NLRB’s expansive view on employee rights under the National Labor Relations Act in the social media context.