Following closely after the NLRB’s first social media decision in Costco Wholesale Corporation (NLRB Case No. 34-CA-012421) just weeks ago, an ALJ for the Board has issued a mammoth 43 page decision in EchoStar Technologies (NLRB Case No. 27-CA-066726) striking down numerous employer policies that in his opinion unlawfully chilled employees’ rights to engage in protected concerted activity.

This post takes a look at the policies challenged in the EchoStar decision and summarizes where employers stand now.
Continue Reading One Day You’re In, the Next You’re Out: A Policy-by-Policy Analysis of the Fallout for Employer Policies in the Wake of the NLRB’s Decisions in Costco and EchoStar

With Martin v. Spring Break ’83 Productions, LLC,, the Fifth Circuit put a much-needed (and 30-year-in-the making) dent in a long line of case law refusing to enforce private Fair Labor Standards Act (FLSA) waivers between employees and employers that are not approved by the Department of Labor (DOL) or by a court during litigation. This case is one that will be well-received by employers and, optimistically, followed by courts outside the Fifth Circuit, which governs Louisiana, Mississippi and Texas. With any luck, FLSA settlements will be increasingly private matters between employer and employee, like other agreements settling employment-related claims, and the requirement that FLSA claims be released only through long protracted and expensive litigation be the exception, not the rule.

Continue Reading Coming Soon to a Jurisdiction Near You (Hopefully), The Fifth Circuit Holds That a Private Settlement Agreement Dismissing FLSA Claims is Enforceable

In recent months, the National Labor Relations Board (NLRB) has grabbed the attention of many employers, union and non-union alike. NLRB decisions and guidance documents have found that a number of very common company policies and practices violate employee rights under Section 7 of the National Labor Relations Act. Section 7 protects the rights of employees to communicate with co-workers about wages and other working conditions and to act together, including by supporting or joining unions.

In a decision on July 30, 2012, the NLRB continued the trend of finding legal fault with practices that may sound very familiar to you. The decision is Banner Health System dba Banner Estrella Medical Center and James A. Navarro, Case No. 28-CA-023438. One of the issues in the case was the company’s routine practice when conducting internal investigations to ask the complaining employee and all witnesses interviewed not to discuss the matter with co-workers while the investigation was ongoing. Sound familiar?

The employer argued that it had a right to request employees not to discuss ongoing investigations in order to protect the integrity of the investigation. This is a common employer concern. Widespread discussion of an ongoing investigation can compromise future interviews by making people aware of the issues before they are talked to. Talk in the workplace about an ongoing investigation could also cause employees to feel intimidated about cooperating. The NLRB found the employer practice an illegal restriction on the rights of employees to discuss workplace issues among themselves. The NLRB considered but rejected the employer’s argument that the caution about confidentiality was merely a request, not a mandatory rule. The NLRB left the door open for an employer in some cases to justify a prohibition on employee discussions of ongoing investigations. But, the NLRB said to justify that restriction, the employer would have to be able to show a specific legitimate business justification, not a generalized concern. As an example, the Board said that the employer should be required "to first determine whether in any given investigation witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover-up."

The NLRB’s position puts employers in a tough spot. How do you protect the integrity of an ongoing investigation without asking witnesses to maintain confidentiality at least while the investigation is ongoing? Employers should treat each investigation on an individualized basis. If a decision is made to request confidentiality during an investigation, the employer should document its specific business reason for requesting confidentiality in that case.

Continue Reading Recent NLRB Rulings May Surprise and Concern You

On May 30, 2012, the NLRB’s General Counsel’s Office issued its third Memo addressing social media issues. This one is devoted entirely to its position on the lawfulness of various typical social media policy provisions. Hoping that this third General Counsel Memo would provide greater clarity on the Board’s regulation of social media policies, I sat down and read it and, quite frankly, came to the conclusion that the Memo only adds to employers’ confusion on what they can and cannot include in their social media policies — even though the GC took the unusual step of appending to the Memo a social media policy that it considered entirely lawful.

Having spent a fair bit of time pondering the significance of this Memo, I have arrived at this conclusion: Though I am pleased to have a policy that the General Counsel’s office has endorsed, the highly nuanced distinctions made between policies considered lawful and unlawful are baffling.

Here are a few examples:

Regarding defamation:

LAWFUL:

Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers people working on behalf of [Employer] or competitors.

UNLAWFUL

You may not make disparaging or defamatory comments about [Employer], its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their products/services.

Continue Reading NLRB General Counsel Issues Another Social Media Memo

Continuing its campaign to educate workers, particularly those in non-union settings, regarding their Section 7 rights, the National Labor Relations Board this week launched a new webpage on its website specifically to describe protected concerted activity and to apprise workers of their rights "to act together for their mutual aid and protection, even if they are not in a union."

Section 7 of the National Labor Relations Act ("NLRA") states that:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”

To demonstrate what Section 7 rights look like in action, the webpage contains 13 case examples from around the country of employer discipline that the Board found unlawful, which can be viewed by clicking points on a map. The case examples are wide-ranging and span the typically-thought-of examples of employees registering complaints directly to their employers to cases where employees aired their employer grievances on YouTube and Facebook. The diverse range of case examples appears to be a conscious effort by the NLRB to spotlight the ever-expanding face of Section 7 concerted activity in light of social media.

Some of the highlighted cases include stories of:

  • Five construction employees fired after several of them appeared in a YouTube video complaining of hazardous working conditions;
  • A customer service representative fired after discussing wages with another employee, based on a policy in the company handbook that the NLRB found was unlawful;
  • A paramedic fired after posting grievances about her supervisor on Facebook following a work-related incident;
  • An employee fired and threatened with deportation after he delivered a petition protesting their poor living conditions and irregular hours that was signed by several dozen welders who were performing contract work under temporary visas; and
  • Two women fired for telling a newspaper that they, along with a group of poultry workers, walked off the job to protest a new requirement that they pay 50 cents per pair of latex gloves that they used.


Continue Reading NLRB Launches Webpage Describing Protected Concerted Activity

The NLRB was issued a stunning rebuke yesterday by U.S. District Court Judge James Boasberg (an Obama appointee) when he ruled that the NLRB’s controversial union election rule changes were invalid because they were enacted without the required three-member quorum. The NLRB may appeal Judge Boasberg’s decision. However, at least for the present, the Court’s

Starbucks recently won a limited victory in a case involving employees wearing pro-union buttons at work. National Labor Relations Board v. Starbucks Corp. Court of Appeals Second Circuit, Case No. 10-3511. A common union organizing tactic is to have pro-union employees wear union buttons at work. Employers often have the mistaken impression that they can