Category Archives: Labor Relations

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NLRB Has Full Complement Of Board Members

The Senate confirmed all five of the President’s nominees to serve as National Labor Relations Board (the “Board”) members on July 30, 2013.  This gives the Board a full complement of Senate-confirmed members for the first time in a decade.

The Board now includes Democrats Board Chairman Mark Gaston Pearce, whose term was set to expire in August, Kent Hirozawa, … Continue Reading

Email Policy Cannot Be Used to Squelch Protected, Concerted Activity

Employers must ensure that their email policies advise employees of the appropriate use of email.  Likewise, employers must enforce appropriate use policies in a consistent matter.  However, employers do not have unfettered discretion to discipline employees for “inappropriate” email content.  In a recent ruling, the NLRB found that an employer had committed an unfair labor practice when disciplining employees … Continue Reading

Skinsmart Dermatology Avoids a Legal Blemish Over Facebook Posting

The “Facebook Firing” cases continue with the NLRB deciding more often than not that employees fired for Facebook postings engaged in “protected concerted activity” under the National Labor Relations Act (“NLRA”) and are entitled to reinstatement.

However, a break from the typical outcome occurred in May, 2013, when an NLRB Associate Counsel sent an Advice Memorandum to his Regional Director … Continue Reading

NLRB General Counsel Suggests Language That Complies With Banner Health

In a memorandum dated January 29, 2013, but made public on April 16, 2013, the NLRB’s Office of General Counsel, while confirming that an employer’s blanket confidentiality rule, which precludes employees from disclosing information about ongoing investigations into employee misconduct, is unlawfully overbroad under the Board’s decision in Banner Health, 358 NLRB No. 93 (2012), held that an employer’s … Continue Reading

Employers Must Examine Their Employee Agreements for Compliance With the National Labor Relations Act

Recently, an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) issued a decision in Quicken Loans, Inc., which found confidentiality and non-disparagement provisions to be unlawful under the National Labor Relations Act (NLRA). The decision is not surprising, and is in accord with the trend of the NLRB to find common employer conditions to violate the … Continue Reading

Recess Appointments To Board Invalid – Summary Of Affected Decisions

The United States Court of Appeals for the District of Columbia Circuit issued an order on January 25, 2013, which struck, as unconstitutional, President Obama’s recess appointments to the National Labor Relations Board (“NLRB”). Noel Canning v. NLRB (Case No. 12-1115) Typically, recess appointments to the NLRB,  pursuant to the Recess Appointments Clause of the Constitution, are made during Senate … Continue Reading

President Obama’s Mark on Employment Law – What do Employers Have to Look “Forward” To in the Next Four Years?

Now that the frenzy of the election has died down, Florida has counted its votes, and the major media outlets have moved on from dissecting party rhetoric, the question remains: What does President Obama’s reelection mean for the country?  And for the purposes of employers and those in HR, what changes will we see in his second term in labor … Continue Reading

Does Your Policy Covering Employees’ Use of Social Media Cross the Line – And Just Where Is That Line Anyway?

Two recent rulings by the National Labor Relations Board (Board) involving employees’ use of social media make it clear that employers who want to avoid violating federal labor laws are well served to revisit their social media policies and, perhaps along with their counsel, take a close look at whether these policies violate the National Labor Relations Act (Act).  Although … Continue Reading

Do the NLRB’s and the EEOC’s Confidentiality Standards Conflict?

The recent NLRB ruling on confidentiality of interviews, which we previously discussed here, may conflict with the EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (the “Enforcement Guidance“).

The Enforcement Guidance establishes that “[w]hen harassment by a supervisor creates an unlawful hostile environment but does not result in a tangible employment action, the employer … Continue Reading

NLRB Representation Rule Still Invalid

On July 27, 2012, Judge Boasberg of the U.S. District Court for the District of Columbia denied the National Labor Relations Board’s (“Board”) motion to reconsider his holding that that the Board’s expedited representation election rule was invalid due to lack of a statutorily-mandated quorum when the Board approved the rule in December 2011.  In his earlier decision,  Judge … Continue Reading

Confidentiality Directives May Violate The NLRA

In keeping with its current interest in examination of standard practices of non-union employers, the National Labor Relations Board (“Board”) has now held that the common directive to employees to not discuss matters under investigation with co-workers may interfere with, restrain or coerce employees in the exercise of their statutory rights under Section 7 of the National Labor Relations Act … Continue Reading

Can An “At-Will” Employment Disclaimer Violate the NLRA?

The National Labor Relations Board (the Board) has started to move aggressively against “at-will” employment disclaimers that many employers include in their handbooks. Typically, employers include an “at-will” employment policy, which states that employees may be terminated at any time for any lawful reason, with or without notice and with or without cause.  Further, employers advise employees that their “at-will” … Continue Reading

NLRB Issues Third Social Media Report

On May 30, 2012, the National Labor Relations Board’s (“Board”) Acting General Counsel, Lafe Solomon, issued his Third Report on Social Media Cases. This Report describes the restrictions on employee use of social media that an employer may lawfully include in its policies.

Under the National Labor Relations Act (“Act”), an employer may not implement a policy that would … Continue Reading

NLRB Member Terence F. Flynn Resigns

On May 26, 2012, Board Member Terence F. Flynn submitted his resignation to  President Barack Obama and to NLRB Chairman Mark Gaston Pearce.  The resignation is effective July 24, 2012.  However, Mr. Flynn immediately recused himself from all agency business and has asked that the President withdraw his nomination for Board Member of the NLRB.

Mr. Flynn was sworn in … Continue Reading

Middle District Judge Disagrees With NLRB Over Class and Collective Action Waivers

In a decision filed on May 18, 2012, Oliveira v. Citicorp North America, Inc. and Citigroup, Inc., Case No. 8:12-cv-251-T-26TGW (M.D. Fla. 2012), Judge Richard A. Lazzara of the Middle District of Florida held that a complete waiver of class and collective actions in either a judicial or arbitration forum was enforceable.  This decision directly conflicts with the National Labor … Continue Reading

NLRB Suspends Implementation Of Representation Case Process Changes

According to a D.C. federal court, another regulation issued by the National Labor Relations Board (the “Board”) is unlawful.  This time, the Board’s so-called “quickie election” rule, which would shorten the time period between an union petition and the election, has been struck down.  This is an important outcome for employers, because the new regulation, if it had been approved, … Continue Reading

NLRB Seeks To Invalidate Arbitration Agreements

On April 30, 2012, the National Labor Relations Board (“Board”)  issued a complaint alleging that 24 Hour Fitness USA, Inc. violated the National Labor Relations Act (“Act”) by requiring that all employment disputes be resolved by an arbitration in which only individual, and not class or collective, claims could be brought.

24 Hour Fitness, which operates centers across the country, … Continue Reading

NLRB Acting General Counsel Issues Memo on New Representation Case Procedures

Yesterday, NLRB Acting General Counsel Lafe Solomon outlined how regional offices will implement new representation case procedures that take effect on Monday, April 30.  Of benefit to employers, the guidance covers the entire representation case process from beginning to end, incorporating the new rules and the procedures that remain unchanged.  Briefly, the changes to the rules are:

1) An explicit … Continue Reading

NLRB Stays Implementation of Notice Posting Rule

The D.C. Circuit Court of Appeals has temporarily enjoined the National Labor Relations Board’s Rule requiring the posting of employee rights, which had been scheduled to take effect on April 30, 2012.  In  light of this order, the Board has stated that regional offices will not implement the Rule, pending the resolution of the issues before the DC Circuit Court.  … Continue Reading

South Carolina Federal Court Strikes Down NLRB Notice Posting Rule

On Friday, April 13, 2012, the United States District Court for South Carolina held that the National Labor Relations Board (“NLRB”) exceeded its authority when promulgating a rule which requires that all employers subject to the jurisdiction of the National Labor Relations Act (“NLRA”) post a notice of employee rights.  In Chamber of Commerce of the United States, et al. Continue Reading

NLRB Posting Rule Upheld

On March 2, 2012, Judge Amy Berman Jackson of the United States District Court for the District of Columbia held that the National Labor Relations Board (“Board”) lawfully promulgated Subpart A of its Rule, “Notification of Employee Rights under the National Labor Relations Act” which requires employers to post a notice of employee rights.  However, the Board exceeded its authority … Continue Reading

Waiver of Right to Bring Class or Collective Actions May Violate Federal Labor Law

The National Labor Relations Board has ruled that it is a violation of federal labor law to require employees to sign arbitration agreements that prevent them from joining together to pursue employment-related legal claims in any forum, whether in arbitration or in court.

The case examined an agreement under which employees waived their right to a judicial forum and agreed … Continue Reading

NLRB Acting General Counsel Issues Second Social Media Report

On January 25, 2012, NLRB Acting General Counsel Lafe Solomon released a second report describing social media cases reviewed by his office.

The Memorandum covers 14 cases, half of which involve questions about employer social media policies. Five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was … Continue Reading

NLRB Poster on Employee Rights Now Available for Download

The workplace poster on employee rights under the National Labor Relations Act is now available as a free download from the NLRB website.

Most private-sector employers, both union and non-union, must display the poster where other workplace notices are posted as of November 14, 2011. Employers who customarily post personnel rules or policies on an internet or intranet site must … Continue Reading

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