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

Posts Tagged ‘NLRB’

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].

NLRB Decisions are Trending Pro-Employer

Posted on: February 27th, 2019

By: Amy C. Bender

The National Labor Relations Board (“NLRB”) under the Trump administration is showing a return to more conservative, employer-friendly interpretations of the laws regarding employees’ rights to engage in concerted activity to improve wages and working conditions. As a reminder, these protections apply to almost all private-sector employees, regardless of whether they belong to a union.

Independent Contractors – The NLRB recently issued a decision returning to the pre-Obama era, employer-friendly “common law agency” test for determining whether a worker is an employee or an independent contractor. This ruling makes it easier for employers to classify workers as independent contractors, which benefits employers since independent contractors do not have certain rights that employees have, such as the right to unionize (and employers do not have to pay taxes or insurance on independent contractors, among other distinctions).

Joint Employers – The NLRB recently closed the period to submit comments on its proposed rule regarding the standard for when two entities are considered joint employers. Under the proposed rule, an entity will be deemed a joint employer only if it has and exercises substantial, direct, and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. The current standard from the Obama administration allows a finding of joint employment if an entity exercises indirect control or merely has the contractual right to exercise control, which can result in increased liability for businesses.

Employee Handbook Rules – The NLRB recently issued guidance on when an employer’s workplace policy interferes with employees’ rights to engage in protected concerted activity. The guidance provides that a policy will be placed into one of three categories (generally lawful, warrants individualized scrutiny, or unlawful) and be subject to a balancing test between the policy’s negative impact on employees’ ability to exercise their rights and the policy’s connection to employers’ right to maintain discipline and productivity in their workplace. This guidance provides employers more clarity and detail on how to craft lawful policies and also makes clear that policies will be analyzed to determine the impact they would have (and not just conceivably could have) on employees’ rights.

These developments signal good news for employers, and let’s hope this trend continues.

For questions or assistance in reviewing or preparing your workplace policies, contact Amy Bender at 770-818-1421 or [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].

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].