Within the last month, courts have taken steps to protect communications made via social media. For example, in Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-cv-03305 (D.N.J. Aug 20, 2013), which we reported on here, the United States District Court for the District of New Jersey held that private Facebook posts are protected under the Stored Communications Act. On the heels of that decision, the Fourth Circuit Court of Appeals in Bland v. Roberts, 12-1671 (4th Cir. Sept. 18, 2013) overturned a district court decision that had held that public employees’ Facebook “Likes” were not protected speech under the First Amendment. (Remember of course, that public employees, unlike the employees of private businesses, have limited First Amendment rights to speak out on matters of public concern.)
Continue Reading Fourth Circuit Holds “Liking” a Facebook Page is Protected Speech in the Public Employment Context. What Does This Mean In the Private Employment Context? Well, It Won’t Stop Those Annoying Farmville or Candy Crush Invitations
Sixth Circuit’s Enforcement of Specialty Healthcare Standard Opens Door Wider For Union Organizing Efforts
Last month, the Sixth Circuit in Kindred Nursing Centers East, LLC v. NLRB enforced the National Labor Relations Board’s 2011 Specialty Healthcare II decision in which the Board adopted a controversial test opening the door for unions to organize “micro” bargaining units of employees despite employer evidence that additional employees share a community of interest with those employees and therefore should be added to the unit.
Continue Reading Sixth Circuit’s Enforcement of Specialty Healthcare Standard Opens Door Wider For Union Organizing Efforts
When Employee Taunts Employer via Facebook to “FIRE ME. …Make my day. . .” NLRB Memo Concludes the Employer Can Go For It
The National Labor Relations Board Office of the General Counsel released an Advice Memorandum in Tasker Healthcare Group, d/b/a Skinsmart Dermatology ("Tasker") Case 04-CA-094222 on May 16, 2013 and concluded that an employee was not engaged in protected concerted activity when she posted comments to a Facebook group message that taunted her employer to "
Union Organizing Posting Rules: Reminder that Federal Contractors and Subcontractors Must Still Post
Recently, we pointed out that the effort by the National Labor Relations Board to impose on all employers an obligation to post notices about union organizing rights remains stalled. That article resulted in some questions about whether federal contractors and subcontractors are still required to post a notice about union organizing.
Continue Reading Union Organizing Posting Rules: Reminder that Federal Contractors and Subcontractors Must Still Post
NLRB Posting Rule Dealt Another Blow
It has been almost a year since there was news to report about the NLRB proposed rule requiring employers to post notices about union organizing rights. As you might recall, the NLRB issued the rule in the fall of 2011 and it caused immediate controversy. Many in the business community considered the posting an unwarranted
Don’t Expect Any New Right-to-Work Legislation in Ohio…Until Perhaps After 2014
First it was Wisconsin. Then Indiana. Then Michigan of all places. Right-to-work legislation is being considered, and in some cases passed, by legislatures throughout the Rust Belt. Given that trend, and the economic benefits to businesses and the state that follow with right-to-work, it was only a matter of time before regional pressures led the Ohio legislature to consider the idea notwithstanding the previously failed attempts on Senate Bill 5.
Continue Reading Don’t Expect Any New Right-to-Work Legislation in Ohio…Until Perhaps After 2014
NLRB Issues Third Facebook Firing Decision (Employers 1, Employees 2). Would Bettie Page Roll Over In Her Grave?
The National Labor Relations Board (NLRB) has issued its third Facebook firing decision. In Design Technology Group LLC dba Bettie Page Clothing (Case No. 20-CA-035511, 359 NLRB No. 96), the Board found that the employer, a clothing store, violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by discharging three employees for engaging
NLRB Issues Advice Memorandum Weighing In On Confidentiality of Employer Investigations
Back in August, we alerted you to an NLRB decision in Banner Health System dba Banner Estrella Medical Center and James A. Navarro, Case No. 28-CA-023438, in which the Board held that an employer’s blanket rule requiring employees to maintain the confidentiality of pending internal company investigations violated the employees’ Section 7 right to
NLRB Further Restricts Employer Policies on Employee Communication: NLRB Finds Rules Restricting Employee Communication with Media and Law Enforcement and Communication about Confidential Information Unlawful
On the heels of three memoranda from its General Counsel, multiple ALJ decisions, and even one or two decisions of the full Board addressing employer social media and communications policies over the last couple of years, the National Labor Relations Board (NLRB)’s decision last week in DirecTV, which held that DirectTV’s policies restricting certain employee communication were unlawfully overbroad, might be viewed by some as rather predictable. Nevertheless, despite the uncertain validity of recent Board decisions in general in light of the D.C. Circuit’s Noel Canning decision (see our blog post from yesterday for more discussion of the Noel Canning decision), DirecTV is instructive precisely because of its apparent routine nature. In short, as Board decisions related to social media and employee communications become more predictable and routine, the more the employer community has some reasonable assurance that it can craft policies that can withstand NLRB scrutiny.
Communication with the Media:
DirecTV had two policies relating to communications with media that were challenged in this case. The first, a handbook policy, said, simply, “Do not contact the media.” The NLRB said that this policy violated employee rights under Section 7 of the National Labor Relations Act (NLRA) because it covered employee comments to reporters about labor disputes. The Board did offer some guidance about what might be required of a permissible policy, finding that the rule should have differentiated between protected (by Section 7) statements and non-protected statements, like those that are maliciously false.
The second media communication policy, a “Public Relations” policy on the company intranet, said, in part, “Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations.” The Board struck down this policy as well, holding that it would prevent workers from expressing disagreement with DirecTV to the media about labor disputes, including those about wages, hours, or terms and conditions of employment. These rights are protected by Section 7 of the NLRA. The Board noted that the rule made no attempt to limit its application to statements about proprietary information, which presumably would have been permissible.Continue Reading NLRB Further Restricts Employer Policies on Employee Communication: NLRB Finds Rules Restricting Employee Communication with Media and Law Enforcement and Communication about Confidential Information Unlawful
Remember When “Recess” Meant Fun and Games? The Impact of Canning v. NLRB, and What Employers Need to Know While We Wait and See if the Decision Will Remain In Tact
As the D.C. District Court’s long-awaited decision in Noel Canning v. NLRB, invalidating President Obama’s January 2012 "recess" appointments, likely heads to the United States Supreme Court, here’s what employers need to know in the interim about the impact of that decision.
The Background
As we explained in our post, President Obama’s Move to Sidestep the Senate with Recess Appointments, when the National Labor Relations Board’s ("NLRB") normal five-person membership fell to two in late 2011 when Craig Becker’s (who had also been an Obama recess appointee) appointment expired and the agency, therefore, lost its statutory authority to issue rulings, President Obama made three appointments in early 2012 as the Senate was scheduled to leave on holiday break, which sparked a host of controversy.
The controversial appointments included the appointment of Democrat Sharon Black, a Labor Department Official; Democrat Richard Griffin, General Counsel for the International Union of Operating Engineers; and Republican Terrance Flynn, an NLRB attorney.
Setting the Stage for a One-To-Watch Decision
So why the controversy? Well, President Obama made the appointments while the Republican Senate was holding pro forma sessions over the holiday to technically avoid going into recess. While this tactic was certainly not a new one, as it had been used by other Congresses to avoid triggering the president’s recess appointment power, President Obama’s move was particularly aggressive because the Senate was meeting every three days with the specific purposes of staying in session and denying him the chance to make recess appointments. With the standoff, President Obama called the Senate’s bluff and seated all NLRB nominees.
The recess appointment issue is the focus of over a dozen lawsuits, many of which remain pending, but the lead case — the one to watch — has always been Noel Canning v NLRB pending in the D.C. District Court, which we first introduced you to back in March 2012 in A New Challenge to President Obama’s Recess Appointments in Federal Court Means a Decision on the Constitutionality of the Appointments is Getting Closer. The attention certainly is warranted, but not because of the underlying facts, which concern a run-of-the-mill, routine labor dispute. Where it gets interesting is that the decision was decided by three of the five NLRB members, two of whom were "recess" appointees. The case was appealed to the D.C. District Court and the issue to be decided was whether the three-person decision had the necessary quorum of at least three members to be valid. Because the three temporary appointees, were arguably, not legally appointed, the decision was subject to nullification.
The challenge was based on the United States Supreme Court’s 2010 case New Process Steel, L.P. v. NLRB where it held that the five-member NLRB could not delegate its authority to fewer than three members. Thus, a two-person board is not a quorum and is powerless to render decisions. Since Wilma Leibman’s term expired in August 2011, the NLRB had been functioning as a three-member unit. The NLRB lost that three-person quorum when Becker’s term expired at the end of 2011. When President Obama made the three "recess" appointments, the NLRB only had two members. Therefore, if the President’s three "recess" appointments were unconstitutional, arguably every decision made by the NLRB with the recess appointments sitting as quorum effectively would be moot.
The D.C. District Court’s Decision
The D.C. District Court issued a two-part decision and held that President Obama’s "recess" appointments in January 2012 were constitutionally impermissible.
Part One: The appointments were "made when the Senate was not in Recess" because the President’s recess appointment power does not apply to "intrasession" appointments, only "intersession" appointments.
The first part of the court’s ruling was unanimous and answered the question: "How long must the Senate be away to technically be on ‘recess’"? Article II, Section 2 of the Constitution gives the President the "[p]ower to fill up all vacancies that may happen during the recess of the Senate," and these recess appointments do not have to be filled by the Senate. The Constitution does not specify how long the Senate had to be in recess to trigger the President’s appointment power so the court answered it, and held that the constitutional authority to fill a vacancy can only be used when one Congress has ended and before a new Congress comes to town, and not during a break between two sessions of the same Congress. Therefore, the President’s recess appointment powers do not apply to "intrasession" appointments i.e., those made when Congress has left town for a few days or weeks.
The court’s opinion affirmed the "original meaning" mode of interpreting the Constitution, meaning the judges reviewed the constitutional issue by looking at what the framers meant by the words when they originally wrote them. The D.C. District Court reviewed the history of the Recess Appointment Clause, and concluded that "Recess" referred to intersession recesses and not the generally shorter intrasession ones and found:
We hold that "the Recess" is limited to intersession recesses. The Board conceded at oral argument that the appointments at issue were not made during the intersession recess: the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued. Considering the test, history and structure of the Constitution, these appointments were invalid from their inceptions. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated.
The court found that to interpret "the Recess" to include other breaks in Senate business would give the President "free rein" to make appointments "at any time he pleases, whether that time be a weekend, lunch or even when the Senate is in session and he is merely displeased with its inaction." Thus, the judges made a bright-line decision in holding that the Senate only recesses, for purposes of the President’s recess appointment power, at the end of the year.Continue Reading Remember When “Recess” Meant Fun and Games? The Impact of Canning v. NLRB, and What Employers Need to Know While We Wait and See if the Decision Will Remain In Tact