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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

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

As the COVID-19 pandemic continues to impact businesses across the country, employers are faced with the difficult question of how to keep their workplaces safe. Some employers are attempting to restrict off-duty employee conduct to limit high-risk behavior.

The National Football League (NFL) is one employer taking steps to regulate off-duty conduct to reduce risks associated with the COVID-19 pandemic. The NFL has apparently reached an agreement with the players’ association that restricts the players’ off-duty conduct in some surprising ways. Players are prohibited from attending indoor night clubs, concerts, and even indoor religious services that allow attendance above 25 percent capacity. If a player violates these rules and then tests positive for COVID-19, he will reportedly not be paid for any games he misses and future guarantees in his contract will be voided. The NFL and the players’ association have presumably entered into this agreement for two chief reasons: to minimize COVID-19 outbreaks among teams and, in turn, to increase the likelihood that NFL football can be played this season. Commentators have thrown some challenge flags at the agreement, however, due to its potential for punishing employees for engaging in lawful off-duty activities.
Continue Reading NFL is tackling off-duty conduct to reduce COVID-19 spread. Can your business, too?

The National Labor Relations Board (NLRB or Board) invited interested parties to submit feedback about when an employee’s offensive or inappropriate workplace comments should lose the protection of the National Labor Relations Act (NLRA). Specifically, the NLRB is inviting employers and other parties to submit briefing about whether it should reconsider its standards for determining whether Section 7 of the NLRA protects employees who make “profane outbursts and offensive statements of a racial or sexual nature…during the course of otherwise protected activity.” By way of background, Section 7 of the NLRA gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” That can include raising work-related disputes or complaints. This right extends to all non-management employees, not just those represented by a union. But what if the employee raising specomplaints uses obscene or otherwise offensive language directed at a supervisor? In some NLRB cases, employee outbursts that have included offensive language have been shielded from punishment by the employer because the language was considered a part of protected speech.
Continue Reading NLRB invites businesses to provide feedback on when an employee’s offensive comments should lose the protection of federal labor law

On Sept. 6, 2019, the National Labor Relations Board (NLRB) granted a significant win to employers, ruling that businesses can lawfully limit the rights of nonemployee union supporters to access company property that is otherwise open to the public. In a 3-1 decision, the Board ruled that Kroger did not violate the National Labor Relations Act (NLRA) when it removed nonemployee union supporters from the parking lot of a Kroger store. The decision overruled a 2016 ruling by an NLRB administrative judge that Kroger had illegally barred two nonemployee representatives of the United Food and Commercial Workers Union from petitioning customers in the parking lot of a store in Portsmouth Virginia. The nonemployee union representatives were there to solicit customer support for the union’s protest over a decision to close the store and relocate employees to a different location 25 miles away.

The administrative law judge who initially heard the case ruled in favor of the union, noting that the grocery store’s managers had previously allowed several charitable entities to distribute literature and sell goods outside the store’s entrance. Applying Sandusky Mall Co., 329 NLRB 618 (1999), the administrative law judge held that Kroger violated the NLRA and discriminated against the union by regularly granting access to company property to civic, charitable and promotional activities by nonemployees while prohibiting nonemployee union representatives from petitioning on company property.
Continue Reading NLRB sides with Kroger’s action to remove union representatives from company property

The decision to classify a worker as an independent contractor, rather than as an employee, carries significant legal implications. Misclassifying employees as independent contractors can result in employer liability for unpaid payroll taxes, unpaid unemployment and workers’ compensation premiums, and responsibility for failure to provide the various rights afforded under employment laws to employees but…

The new Republican-led National Labor Relations Board (NLRB) has wasted little time in reconsidering decisions made during the Obama Administration. In its Boeing, Inc., decision, announced on Thursday, Dec. 14, 2017, the board overturned its Lutheran Heritage Village-Livonia decision that has guided its evaluation of employee handbook policies for the past 13 years and most recently has come under intense criticism from the employer community for chipping away at common employee handbook policies.

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Continue Reading NLRB establishes new standard for evaluating employee handbook policies

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

Employers beware…it may be time yet again to review your handbooks to make sure that your policies do not violate the National Labor Relations Act (NLRA). A National Labor Relations Board (NLRB) judge recently ordered several Verizon Wireless stores to strike certain employee handbook policies.  In all, the decision means Verizon Wireless must strike 10 employee handbook policies that violated the NLRA because they could be read to chill employees’ rights to engage in protected concerted activity.

Section 7 of the NLRA grants employees the right to engage in concerted activity for the purpose of mutual aid and protection. Section 8(a)(1) of the Act makes it unlawful for an employer to interfere with, restrain or coerce employees in the exercise of their Section 7 rights.…

Continue Reading “Can you hear me now?” NLRB judge calls on Verizon to remove restrictive handbook policies