CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Posts Tagged ‘National Labor Relations Board’

NLRB Reverses Obama-Era Ruling And Finds That Employers Can Prohibit Use of Company Email for Union Activities

Posted on: January 2nd, 2020

By: Brad Adler

On December 17, 2019, the National Labor Relations Board (NLRB) ruled in Caesars Entertainment that employees have no right under the National Labor Relations Act to use an employer’s email system for union activities, including organizing. This decision reverses a controversial and unprecedented ruling by the NLRB in 2014 (Purple Communications)  that essentially found that employers could not prohibit employees from using the employer’s email system for union activities.

While the scope of any ban on using email for non-work purposes will vary based on the facts of each case, the good news is that the NLRB, as currently constituted, has recognized that an employer fundamentally is in charge of how its equipment, including email system, can be used by employees.  In light of this ruling, we suggest that employers work with their labor and employment counsel to ensure that the language of any current work rules clearly sets out the respective company’s expectations on how work equipment, including email, should be used by employees.

If you have any questions or would like more information, please contact Brad Adler at [email protected].

Going Out with a “Goat Bang”

Posted on: July 27th, 2018

Employee’s Slang in Comments on Social Media Protected as Concerted Activity

By: Robyn Flegal

A panel of the National Labor Relations Board ordered an Iowa electric company to rehire and pay back wages to a utility pole employee who was terminated for posting on social media that the Company was a “goat bang,” which he later testified was a commentary about the utility company’s safety policies—including (a) inadequate training and (b) splitting teams into groups that were too small to ensure employee safety.  The Company learned of this social media post when employees who were offended by the post showed their supervisors.

The panel held that the Company violated the National Labor Relations Act (NLRA) by firing the employee for his post. The panel held that the social media comments (even calling the Company a “goat bang”), while not “inherently concerted” and therefore not subject to heightened protection, were “concerted activity for the purpose of mutual aid or protection.” According to the NLRB, the Company’s explanation for firing the employee was pretextual, as multiple Company witnesses said that the employee was “canned” because of his posts. Notably, the NLRB also determined that the Company’s “attitude” and “conduct” policies, which the Company pointed to in justification of this termination, were illegal under the NLRA because the policies interfered with workers’ rights.

This decision demonstrates the careful consideration employers should give to a decision to terminate an employee for raising concerns about the Company on social media. Employers should also be reminded to evaluate their seemingly neutral policies for compliance with the NLRA. For more information or to consult with one of FMG’s seasoned Labor and Employment attorneys regarding reviewing your company’s policies, contact Robyn Flegal at [email protected] or any of the attorneys in our National Employment Law Practice Group.

Company Wrongfully Terminates Employees for Emails Using Profanity

Posted on: May 1st, 2018

By: Joyce M. Mocek

The National Labor Relations Board (“NLRB”) recently determined Mexican Radio Corp. (a restaurant company) violated the National Labor Relations Act (“NLRA” or the “Act”) when it fired four (nonunion) employees after they sent emails complaining about their wages, work schedules, tip policy and work conditions.

The issues relating to the terminations began when a General Manager discussed with her employees new staffing and tip policies, and said “if you don’t like it, you can go.”  The General Manager also allegedly made a statement about an employee who had been absent from work due to an illness, inquiring if she was “dead yet”.   An employee resigned and sent an email to a group of coworkers complaining about the General Manager.  Current employees responded with a “reply all” email to the group, sharing their concerns.

Management subsequently met with the employees individually and attempted to interview them.  The employer then terminated the employees, providing different reasons for the terminations, including the emails used inappropriate language (profanity), refusal to be interviewed, and missing work.  The employees filed an NLRB charge alleging retaliation.  The ALJ issued a ruling holding the Company had violated section 8(a)(1) of the NLRA, which prohibits employers from interfering, restraining, or coercing employees in the exercise of their rights, by terminating the employees due to their participation in protected activity.

The Company filed exceptions to the ALJ’s decision, including objecting to its reach over nonunion employers.   The Company argued the email(s) contained profanity, and thus lost protection under the Act.  Under Atlantic Steel (a prior NLRB decision), in certain situations, an employer may terminate an employee for otherwise protected conduct if the behavior is “opprobrious” enough.   The NLRB disagreed with the Company’s arguments, finding the amount of profanity in the emails was not enough to lose protection.   The NLRB (affirming the ALJ’s decision in Mexican Radio Corp. and Rachel Nicotra, Case 02-CA-168989) determined the reasons for the terminations provided by the Company were pretextual, the true reason for the terminations were the employee’s participation in activity protected under the Act, and as such, the terminations violated the Act.

Employers  should be mindful of this ruling and the continued reach of the NLRB over nonunion employers when considering employee workplace activities.   This decision reinforces the need to ensure that Company handbooks and policies comply with guidelines relating to email and social media usage, and the need to carefully review and take appropriate action in each situation that may arise involving employee actions in violation of such policies.

If you have any questions or would like more information, pleases contact Joyce Mocek at [email protected].

Gone In A Flash: NLRB Overrules Employee Handbook Standard

Posted on: December 20th, 2017

By: William E. Collins, Jr.

On December 14, 2017, in a case involving the Boeing Company, the National Labor Relations Board (“NLRB”) overruled the Lutheran Heritage workplace policy standard that stood for over 13 years, and ushered in a new standard for workplace policies. This decision is a significant shift in labor policy, leaving many hopeful that the new standard will provide consistency and give employers a clear picture of compliance.

Under the now overruled Lutheran Heritage standard, policies, rules, and handbook provisions that appeared neutral still violated the National Labor Relations Act (“NLRA”) if an employee could “reasonably construe” the policy to prohibit protected activity. As you can imagine, discerning what an employee would “reasonably construe” often led to puzzling results.

Departing from the “reasonably construed” standard, the Boeing decision sets out that an employer’s rule violates the NLRA only if the reasonable interpretation of the policy would potentially interfere with an employee’s ability to engage in protected activity.  The NLRB will look at two factors:

(1) the nature and extent of any potential impact on the protected activity; and

(2) the legitimate justifications associated with the rule.

Under this standard, the NLRB will categorize employer rules in one of three categories:

 

 

Category

Explanation

Category 1 The rule is lawful to maintain.

The rule is lawful because:

(a) when reasonably interpreted the rule has no tendency to interfere with the ability to engage in protected activity; or

(b) while the rule may have some tendency to interfere with an employees rights, the risk of interference is outweighed by the corresponding justifications.

Category 2 It is unclear whether the rule, as a general matter, would prohibit or interfere with an employee’s right to engage in protected activity. These rules warrant “individualized scrutiny” to determine if there is interference and whether the interference is outweighed by the specific justifications in the case.
Category 3 The rule is unlawful. The rule prohibits or limits an employee’s right to engage in protected activity and that limitation is not outweighed by the justifications.

 

Applying this new standard, the NLRB held that the Boeing “no-camera” policy was a Category 1 policy. While the policy requiring a camera permit to take pictures inside Boeing’s facilities could interfere with protected activity, the NLRB found that the justification for the rule outweighed this risk because it serves to protect information that is proprietary and involves national security.

While this more objective standard should remove some of the guesswork, employers are wise to revisit their employee handbooks to determine whether their policies fall into Category 1, or are at least defensible under Category 2. As you prepare your 2018 employee handbooks, members of the FMG National Employment Law Practice Group are available to assist your organization review and finalize these documents.

If you have any more questions or would like more information, please contact Will Collins at [email protected].

 

NLRB Delivers One-Two Punch to Pair of Standards that Have Dogged Employers

Posted on: December 18th, 2017

By: Paul H. Derrick

In a stunning development, the National Labor Relations Board has overruled a pair of controversial standards that have caused headaches in the business community for years.

In the first case, the NLRB reversed an Obama-era decision that put employers potentially on the hook for labor law violations committed by their subcontractors and franchisees.  By a 3-2 vote, the Board erased its decision in a case known as Browning-Ferris Industries, which found a company to be a joint-employer with a subcontractor or franchisee if it had “indirect” control over the terms and conditions of the terms and conditions of the workers’ employment or had the “reserved authority to do so.”

Since that broad standard was adopted, the Board has used it to bring literally hundreds of cases against McDonald’s and other businesses for the alleged acts of their contractors and franchisees.  Going forward, however, the NLRB says that two or more entities will be deemed joint employers under the National Labor Relations Act only if there is proof that one entity actually exercised direct and immediate control over essential employment terms of another entity’s employees.  Proof of indirect control, contractually-reserved control that has never been exercised, or control that is limited and routine will no longer be sufficient to establish a joint-employer relationship.

In a second unexpected development, also by a narrow 3-2 margin, the NLRB overturned its 2004 decision in Lutheran Heritage Village-Livonia, under which many seemingly harmless workplace rules were deemed unlawful.  The Board had determined in that case that employer rules violate the NLRA if they “could be reasonably construed” by employees to prohibit the exercise of rights under the NLRA.

Going forward, the NLRB says that it will consider the nature and extent of a challenged rule’s potential impact on employee rights under the NLRA and the legitimate justifications associated with the rule.  The Board also announced three categories into which it will now classify rules to provide greater clarity and certainty to employees, employers, and unions.

The first category covers rules that are legal in all cases because they cannot be reasonably interpreted to interfere with workers’ rights or because any interference is outweighed by business interests; the second covers rules that are legal in some cases, depending on their application; and the third covers rules that are always unlawful because they interfere with workers’ rights and cannot be outweighed by business interests.  Notably, the Board also announced that it will no longer find a rule to be unlawful simply because it requires employees to foster “harmonious interactions and relationships” or to maintain basic standards of civility in the workplace.

Because of ongoing changes in the NLRB’s composition and the recent nomination of a new General Counsel, these latest decisions will certainly be the subject of challenge and much debate.  If you have any questions or would like more information, please contact Paul Derrick at [email protected].