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In a decision issued Feb. 21, 2023, the National Labor Relations Board (NLRB) set a new precedent regarding confidentiality provisions. The McLaren Macomb case involved furloughed employees that were offered a severance agreement containing non-disparagement language that prohibited them from making negative statements about the employer. The agreement also contained a confidentiality provision that prohibited the employees from discussing the terms of the agreement itself.…

Continue Reading NLRB targets confidentiality provisions in severance agreements

How Constellium should inform employers’ policies and practices 

Assume an employee writes the words “whore board” on company overtime sign-up sheets. Serious misconduct, right? In fact, the employer faced with this situation terminated the employee for offensive conduct.

In Constellium Rolled Products Ravenswood, LLC v. NLRB, the U.S. Court of Appeals for the District of Columbia agreed with a National Labor Relations Board (NLRB) decision finding the termination was unlawful. The case illustrates that National Labor Relations Act protections sometimes can trump an employer’s right to regulate potentially offensive language at work.…

Continue Reading When it comes to employee discipline, consistency is key

*Special thanks to Porter Wright summer law clerk, Grace Brown, for her assistance with this post.

It’s the summer of 2020, and someone from your company posts to her public Facebook page saying, “If Black people truly wanted equality, then they wouldn’t be isolating themselves into a separate group with Black Lives Matter. All lives matter!”

Your social media marketing team discovers the employee’s post after it was shared by someone who accuses that employee, and your company, of being racist.

What do you do?…
Continue Reading How employers can respond to social justice and free speech issues on social media

With increasing frequency, employers are raising the question about what can (or can’t) be done with employees who speak about polarizing issues, whether at work or in a way that affects the work environment. This question is arising often because of our current social and political climate. The legal and practical implications are complex. …
Continue Reading Employees and free speech

The United States Court of Appeals for the Third Circuit recently issued an opinion that reversed a decision by the National Labor Relations Board about whether a comment by a management representative was a threat to workers or a mere joke. The NLRB decision sheds interesting light on how remarks, such as this specific employer’s tweet, meant in jest can backfire. Fortunately for this employer, on appeal the Third Circuit “got the joke.”
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Continue Reading Third Circuit decides employer’s tweet was comedic, not coercive

Recently, Governor Mike DeWine signed House Bill 81 which contains several changes to workers’ compensation laws. Most significantly, the bill contains a provision that will codify the common law voluntary abandonment doctrine. This provision should ensure that injured workers do not receive certain disability benefits if their loss of income is not related to the allowed conditions in a claim. Significantly, this codification specifically supersedes any court opinions applying the well-known doctrine.
Continue Reading What changes are coming to the well-known Ohio workers’ compensation voluntary abandonment doctrine?

Many people exercise daily, and for Shannan McDonald, her exercise was prescribed by her physician for her genetic disorder.  McDonald, employed as a receptionist for UAW-GM Center for Human Resources (CHR), regularly exercised in her employer’s on-site gym during her lunch break.  Per the collective bargaining agreement that covered her employment, each year CHR permitted employees to elect annually whether to take a 60 minute lunch break or a 30 minute lunch break with two other 15 minute breaks. The election remained in place for the entire year following election. McDonald chose the 30 minute lunch break.
Continue Reading Sixth Circuit holds that employer was not required to extend lunch breaks for exercise as reasonable accommodation

The Obama-era NLRB sometimes gave employers fits with decisions and guidance concerning employer work rules. It was common for the Obama-era Board to strike down fairly common, neutral work rules, often based on the idea that employees might interpret the rules to restrict employee rights. It did not take long for Trump-era NLRB appointees, however, to put their stamp on National Labor Relations Act law (see our article about some early actions by Trump NLRB appointees). The current members of the NLRB and the NLRB General Counsel are clearly inclined to give employers more latitude when drafting work rules. Following are some examples of the NLRB’s change in direction.
Continue Reading More news from the NLRB on work rules

After Republicans regained control of the majority seats on the National Labor Relations Board (NLRB or the board) for the first time in nearly nine years, the majority has swiftly reset the board’s tone. Recently, the NLRB has been busy taking steps to undo some of the more labor and employee friendly standards and opinions that were implemented under the Obama Administration. The result is a return to what many employers would consider to be a common sense approach.
Continue Reading NLRB discards Obama-era decisions

In an en banc decision, the 8th U.S. Circuit Court of Appeals has overturned an earlier panel decision, which we reported on here, in MikLin Enterprises Inc. v. NLRB, in which the panel had upheld the NLRB’s finding that a Jimmy John’s franchisee had violated the rights of its employees under the National Labor Relations Act, when it fired them for hanging posters at their shops that suggested that the customers could be eating sandwiches that were made by sick employees in an effort to pressure the franchisee to adopt a paid sick leave policy.

In the en banc decision, the full 8th Circuit refused to enforce the NLRB’s unfair labor practice finding and held that an employer may fire an employee for “making a sharp, public, disparaging attack upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income.” The court emphasized that “allegations that a food industry employer is selling unhealthy food are likely to have a devastating impact on its business” and that the fired MikLin employees made a conscious decision maximize this effect by choosing to launch their attack during flu season. The court added:

“By targeting the food product itself, employees disparaged MikLin in a manner likely to outlive, and also unnecessary to aid, the labor dispute. Even if MikLin granted paid sick leave, the image of contaminated sandwiches made by employees who chose to work while sick was not one that would easily dissipate.”

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Continue Reading Full Eighth Circuit upholds employee terminations in Jimmy John’s paid sick leave dispute